In re Kherkher

604 S.W.3d 548

IN RE Steve KHERKHER, Relator

NO. 14-20-00310-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed June 23, 2020

Steve Kherkher, Robert Pitard Wynne, Eric A. Hawley, Houston, for Relator.

Randall B. Wood, Doug W. Ray, Austin, for Real Party in Interest.

George William Vie, III, Cristen David Feldman, Gerald M. Birnberg, Houston, for Respondent.

Panel consists of Justices Christopher, Wise, and Zimmerer.

Jerry Zimmerer, Justice On April 20, 2020, relator Steve Kherkher filed a petition for writ of mandamus. See Tex. Elec. Code Ann. § 273.061. Kherkher requests that this court compel Lillie Schechter, Chair, Harris County Democratic Party, to declare Brittanye Lashay Morris ineligible to be on the November 3, 2020 general election ballot for the 333rd District Court in Harris County. Kherkher asserts that sworn public records conclusively establish that Morris does not meet the constitutional residency requirements. Morris filed an amended motion to dismiss Kherkher's petition for lack of standing. We grant the amended motion to dismiss and dismiss the petition.

BACKGROUND

Morris won the Democratic nomination for the position of judge of the 333rd District Court in Harris County in the March 3, 2020 primary election. On March 18, 2020, approximately two weeks after the primary election, Kherkher filed a challenge to the eligibility of Morris with Schechter. Kherkher asserted that he provided Schechter with public records, which established that Morris did not meet the residency requirements because she had lived in Fort Bend County for part of the two years before the upcoming November 3, 2020 general election. See Tex. Const. Art. 5, § 7 (requiring, in relevant part, that district judge reside "in the district in which he was elected for two (2) years next preceding his election").

On March 21, 2020, Schechter advised Morris that she had received public records, including a residence homestead application for property in Fort Bend County, that appeared to establish conclusively that Morris had not resided within Harris County continuously for the two years next preceding November 3, 2020. Schechter stated that she was inclined to declare Morris ineligible to be a candidate for judge of the 333rd District Court on the November 3, 2020 general election ballot. However, Schechter afforded Morris an opportunity to demonstrate that Morris had been a resident of Harris County continuously from November 3, 2018, and had not been a resident of Fort Bend County at any time from November 3, 2018, to the date of the notification. Schechter gave Morris until March 27, 2020, to respond.

Morris responded that a homestead application does not conclusively establish a candidate's residence at the property subject to the exemption and, therefore, Schechter had not been presented with any public records that conclusively showed that Morris resided anywhere other than Harris County for the previous two years as stated in Morris's application. Morris did not provide any documents to Schechter. On March 31, 2020, Schechter informed Morris that she concluded that the homestead application conclusively established that Morris failed to meet the residency requirements and declared Morris ineligible for the position of judge of the 333rd District Court.

Morris submitted documents to Schechter on April 7, 2020. The next day, Schechter advised Morris that the documents contained the type of information Schechter requested from Morris in the March 18, 2020 correspondence. On April 8, 2020, Schechter announced that, "[b]ased on those documents, which were not previously available to me, I am now able to consider [Morris] eligible to be on the ballot."

In this mandamus proceeding, Kherkher contends that Schechter had a ministerial duty to declare Morris ineligible for judge of the 333rd District Court when she was presented with public records establishing that Morris had not met the residency requirements for that office. Kherkher, therefore, asks this court to compel Schechter to declare Morris ineligible to be a candidate for judge of the 333rd District Court.

In response, Morris filed a motion and amended motion to dismiss for lack of jurisdiction in this court, asserting that relator does not have standing to challenge her eligibility to be a candidate for judge of the 333rd District Court. Because the amended motion to dismiss is dispositive, we address it first and do not reach the merits of the petition.

MOTION TO DISMISS

Standing is a constitutional prerequisite to maintaining suit. Jefferson Cty. v. Jefferson Cty. Constables Ass'n , 546 S.W.3d 661, 666 (Tex. 2018). Standing consists of some interest peculiar to the person individually and not as a member of the general public. Hunt v. Bass , 664 S.W.2d 323, 324 (Tex. 1984). In other words, standing requires a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court. Heckman v. Williamson Cty. , 369 S.W.3d 137, 154 (Tex. 2012). The claimant must be personally injured rather than the public at large. Id. at 155. "After all, our Constitution opens the courthouse doors only to those who have or are suffering an injury." Id. Standing to sue may be predicated on either statutory or common law authority. Aubrey v. Aubrey , 523 S.W.3d 299, 311 (Tex. App.—Dallas 2017, no pet.) ; Everett v. TK-Taito, L.L.C. , 178 S.W.3d 844, 850 (Tex. App.—Fort Worth 2005, no pet.).

Morris asserts that only a candidate for the 333rd District Court would have standing to challenge her eligibility and therefore, Kherkher, as a voter, does not have standing. It is well-established that a voter having no special interest cannot bring suit seeking the removal of an ineligible candidate from the ballot. Allen v. Fisher , 118 Tex. 38, 9 S.W.2d 731, 732 (1928) ; Clifton v. Walters , 308 S.W.3d 94, 98–99 (Tex. App.—Fort Worth 2010, pet. denied) ; Brimer v. Maxwell , 265 S.W.3d 926, 928 (Tex. App.—Dallas 2008, no pet.) ; Lemons v. Wylie , 563 S.W.2d 882, 883 (Tex. App.—Amarillo 1978, no writ). A candidate for the same office has an interest in not being opposed by an ineligible candidate that is separate and apart from the interest of the general public and, therefore, has standing. Risner v. Harris Cty. Republican Party , 444 S.W.3d 327, 337 (Tex. App.—Houston [1st Dist.] 2014, no pet.) In re Jones , 978 S.W.2d 648 (Tex. App.—Amarillo, orig. proceeding [mand. denied] ) ; Lemons , 563 S.W.2d at 883 ; Adkins v. Rawls , 182 S.W.2d 509, 512 (Tex. App.—Waco 1994, no writ). But even a primary opponent, after the primary election, has no greater standing than any other voter to challenge a nominee in the general election. See Allen , 9 S.W.2d at 732. Kherkher argues that this caselaw does not apply to him for two reasons.

I. Statutory Standing

Kherkher first asserts that he has statutory standing to challenge Morris's eligibility based on two statutory provisions: Sections 273.061 and 145.003 of the Election Code. See Tex. Elec. Code Ann. §§ 145.003, 273.061.

"[T]he judge-made criteria regarding standing do not apply when the Texas Legislature has conferred standing through a statute." In re Sullivan , 157 S.W.3d 911, 915 (Tex. App.—Houston [14th Dist.] 2005, orig. proceeding [mand. denied] ) ; see also Zaatari v. City of Austin , No. 03-17-00812-CV, ––– S.W.3d ––––, 2019 WL 6336186 (Tex. App.—Austin Nov. 27, 2019, no pet. h.) (stating that common-law standards are not dispositive if Legislature has conferred standing by statute). "In statutory standing cases, ... the analysis is a straight statutory construction of the relevant statute to determine upon whom the Texas Legislature conferred standing and whether the claimant in question falls in that category." Sullivan , 157 S.W.3d at 915 ; see also Nephrology Leaders & Assocs. v. Am. Renal Assocs., LLC , 573 S.W.3d 912, 916 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (stating that courts must determine whether plaintiff has established that he has been injured or wronged within parameters of statutory language); Everett , 178 S.W.3d at 851 (stating that "[w]hen standing has been statutorily conferred, the statute itself serves as the proper framework for a standing analysis").

Statutory construction is a question of law. Sunstate Equip. Co., LLC v. Hegar , 601 S.W.3d 685, 689 (Tex. 2020). When construing a statute, our primary objective is to give effect to the Legislature's intent. In re D.S. , 602 S.W.3d 504, 514–15 (Tex. 2020). A statute's unambiguous language controls. City of Richardson v. Oncor Elec. Delivery Co. , 539 S.W.3d 252, 261 (Tex. 2018). "In construing a statute, we assume the Legislature chose statutory language with care, included each chosen word for a purpose, and purposefully omitted all other words." In re D.S. , 602 S.W.3d at 514. "When interpreting the Legislature's words, ... we must never ‘rewrite the statute under the guise of interpreting it.’ " Colo. Cty. v. Staff , 510 S.W.3d 435, 444 (Tex. 2017) (quoting In re Ford Motor Co. , 442 S.W.3d 265, 284 (Tex. 2014) ); see also KMS Retail Rowlett, LP v. City of Rowlett , 593 S.W.3d 175, 183 (Tex. 2019) (explaining that court must enforce statute as written and refrain from rewriting text chosen by lawmakers); Ferreira v. Butler , 575 S.W.3d 331, 337 (Tex. 2019) (explaining that changing meaning of statute by adding words is legislative, not judicial, function).

A. Section 273.061

The first section Kherkher relies on in asserting statutory standing is section 273.061, which provides the following:

The supreme court or a court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer.

Tex. Elec. Code Ann. § 273.061.

Kherkher asserts that he has standing because compelling Schechter to declare Morris ineligible is an action "in...