Denied and Opinion Filed February 28, 2017




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00197-CV

                                 IN RE KRISTI PENA, Relator

                          Original Proceeding from the City of Irving
                                     Dallas County, Texas

                              MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Whitehill
                                   Opinion by Justice Francis
       Before the Court is relator’s February 24, 2017 first amended emergency petition for writ

of mandamus in which she complains of the Irving City Secretary’s decision to reject relator’s

application and petition to appear on the May 6, 2017 general election ballot for the office of

Irving mayor. The City Secretary rejected the application and petition because she was unable to

validate that five people who signed the petition were registered voters in Irving. Without

validating at least three of the five signatures, relator did not have the required thirty-six

signatures to be placed on the ballot. Relator attached affidavits to the petition for writ of

mandamus showing the five people at issue were registered voters in Irving when they signed the

petition. Relator argues those individuals should be counted and validated. Relator seeks

mandamus relief to direct the City Secretary to accept relator’s application and petition, to certify

her name on the ballot, and to redraw for ballot positions.

       This Court has jurisdiction to consider relator’s petition and to “compel the performance

of any duty imposed by law in connection with the holding of an election ... regardless of
whether the person responsible for performing the duty is a public officer.” TEX. ELEC. CODE

ANN. § 273.061 (West 2010). To be entitled to mandamus relief, relator must establish (1) a

legal duty to perform a non-discretionary act, (2) a demand for performance, and (3) a refusal to

perform the non-discretionary act. In re Cullar, 320 S.W.3d 560, 563–64 (Tex. App.—Dallas

2010, orig. proceeding). This Court may not resolve factual disputes in a mandamus proceeding.

Id. Further, “[a]ny constitutional or statutory provision which restricts the right to hold office

must be strictly construed against ineligibility.” Id. (quoting Wentworth v. Meyer, 839 S.W.2d

766, 767 (Tex. 1992) (orig. proceeding)).

       Relator contends the affidavits submitted with the petition for mandamus conclusively

demonstrate that relator met the requirements to be placed on the ballot and the City Secretary

erroneously rejected relator’s application and petition. But the record provided by relator does

not show that the City Secretary was presented with the affidavits prior to relator filing this

original proceeding. The mandamus record also does not show relator asked the City Secretary

to accept the application and petition and to certify her name on the ballot in light of the

affidavits and the City Secretary refused.

       In a letter to the Irving City Attorney dated February 22, 2017, relator’s counsel

demanded that the City Secretary accept relator’s application and put relator on the ballot. The

letter has no attachments or enclosures, however, and the affidavits on which relator relies were

signed the day after relator’s counsel sent the letter. The letter does not support relator’s

contentions that he demanded action from the City Secretary or that the City Secretary refused

the demand in the face of affidavit evidence confirming the validity of the challenged signature.

See, e.g., In re Cercone, 323 S.W.3d 293, 297 (Tex. App.—Dallas 2010, no pet.) (holding letter

sent challenging signatures on petition did not constitute a demand to not certify the real party in

interest as a candidate).

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       Relator’s failure to provide this Court proof that relator provided the City Secretary the

affidavits, requested the City Secretary to accept the application and certify relator for the ballot

in light of the affidavit testimony, and the City Secretary refused to comply, is fatal to her

petition. See In re Cullar, 320 S.W.3d at 566 (“The ‘appropriate authority’ cannot make an

administrative determination of whether the public record conclusively establishes ineligibility

until after he has been presented with such records.”); see also In re Osborn, No. 03-13-00272-

CV, 2013 WL 9797298, at *2 (Tex. App.—Austin Apr. 30, 2013, orig. proceeding) (denying

mandamus and holding that the court could not conclude that official failed to perform a duty

imposed by law where relator failed to show that he presented public records purportedly

supporting relator’s arguments to the election official and did not show he demanded the official

to declare the candidate ineligible and the official refused to comply).

       Although the City Secretary would have a non-discretionary duty to accept relator’s

application in light of uncontroverted affidavit testimony confirming the voter status of the

challenged signatures, that duty will not arise until relator presents the evidence to the City

Secretary and asks the City Secretary to accept the application and petition, place relator on the

ballot, and redraw for ballot position. See In re Cullar, 320 S.W.3d at 566; see also TEX. ELEC.

CODE ANN. § 145.003(f),(g) (West 2010).

       Accordingly, we deny relator’s petition for writ of mandamus




                                                      /Molly Francis/
                                                      MOLLY FRANCIS
                                                      JUSTICE




170197F.P05

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