Supplemental Memorandum Opinion Filed December 11, 2019




                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-19-01499-CV

                 IN RE THE HONORABLE SUZANNE WOOTEN, Relator

                                   Original Proceeding from
                                    Collin County, Texas

                  SUPPLEMENTAL MEMORANDUM OPINION
                          Before Justices Schenck, Reichek, and Evans
                                      Per Curiam Opinion
       On December 9, 2019, we denied relator, Susanne Wooten’s, December 6, 2019 petition

for writ of mandamus and emergency motion for temporary relief in which Wooten sought an

order compelling respondent, Mark Reid, in his capacity as Collin County Republican Party

Chairman (“County Chair”), to place her on the ballot for the Republican primary as a candidate

for the 401st Judicial District Court of Texas. We did so in a summary opinion in deference to

the short time limits imposed on parties to pursue further relief in ballot access litigation as we

explained in In re Jones, No. 05-28-0065-CV, 2018 WL 549531 (Tex. App.—Dallas Jan. 24,

2018, orig. proceeding) (per curiam) (memo. op.). We now supplement our memorandum

opinion of December 9, 2019, to more fully explain why the Court was compelled to deny

Wooten’s petition for writ of mandamus.




                                                1
           Wooten’s petition arises from an administrative body’s declaration that she is ineligible

to be a candidate for the office of District Judge. Accordingly, this mandamus proceeding is

similar to other proceedings where we are limited to a review of the face of the record.

           On November 7, 2019, Wooten submitted her Application for a place on the Republican

Party General Primary Ballot for the office of District Judge, 401st Judicial District Court of

Texas, located in Collin County, Texas. On November 25, 2019, the Chair of the Collin County

Republican Party delivered a declaration to Wooten notifying her that she is ineligible for a place

on the primary ballot.1 This mandamus proceeding followed on Friday, December 6, 2019.

           The County Chair’s responsibilities regarding any candidate’s application for a place on

the ballot is set out in section 145.003 of the Texas Election Code. See TEX. ELEC. CODE ANN.

§ 145.003. Subsection (g) to section 145.003 provides that the County Chair must review

whatever public record is presented related to the eligibility of a candidate and must declare a

candidate ineligible if the public record establishes ineligibility:

         When presented with an application for a place on the ballot or another public record
         containing information pertinent to a candidate’s eligibility, the appropriate authority
         shall promptly review the record. If the authority determines that the record
         establishes ineligibility as provided by Subsection (f), the authority shall declare the
         candidate ineligible.

Id. § 145.003(g).               Subsection (f), provides the standard the County Chair must use when

evaluating a public record is whether that record conclusively establishes ineligibility:

     A candidate may be declared ineligible only if:

           (1) the information on the candidate’s application for a place on the ballot
               indicates that the candidate is ineligible for the office; or



     1
           In declaring Wooten ineligible for a place on the Republican Party Primary Ballot in March of 2020, the County Chair advised
Wooten, “In short, Article 5, Section 7 of the Texas Constitution requires that a candidate for district judge ‘ . . . has been a practicing lawyer or a
Judge of a court in this State, or both combined, for four (4) years next preceding his election . . .’ As you know, your license to practice law was
suspended from October 24, 2012 through June 7, 2017. To be eligible for the November 2020 general election, you must have been a practicing
lawyer for the four years immediately preceding the election, which would have been from November 2016.”


                                                                           2
            (2) facts indicating that the candidate is ineligible are conclusively established by
                another public record.

Id. § 145.003(f).

            In addition to the general requirements for public office set out in section 141.001 of the

Election Code,2 section seven of article five of the Texas Constitution requires a candidate for

District Judge to (1) be a citizen of the United States, (2) be a citizen of the State of Texas, (3) be

licensed to practice law in the State of Texas, (4) for the 4 years immediately preceding the

election, have been a practicing lawyer or a Judge of a Court in Texas or a combination of the

two, and (5) have resided in the district for the 2 years immediately preceding the election. See

TEX. CONST. art. V, § 7. A District Judge in Texas must also be at least 25 years of age. See

TEX. GOV’T CODE ANN. § 24.001.

            In determining whether a candidate is ineligible, the County Chair is not permitted to

consider facts that are not contained in the public record. See Witherspoon v. Pouland, 784

S.W.2d 951, 954 (Tex. App.—Dallas 1990, orig. proceeding). We likewise are constrained to

the limited mandamus record before us and are not permitted to expand the record by embarking

on a fact finding mission, nor are we to engage in speculation as to whether facts outside the

     2
         Section 141.001(a) provides:
            To be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must:
                       (1) be a United States citizen;
                       (2) be 18 years of age or older on the first day of the term to be filled at the election or on the date of
                       appointment, as applicable;
                       (3) have not been determined by a final judgment of a court exercising probate jurisdiction to be:
                                    (A) totally mentally incapacitated; or
                                    (B) partially mentally incapacitated without the right to vote;
                       (4) have not been finally convicted of a felony from which the person has not been pardoned or otherwise
                       released from the resulting disabilities;
                       (5) have resided continuously in the state for 12 months and in the territory from which the office is elected for
                       six months immediately preceding the following date:
                                    (A) for a candidate whose name is to appear on a general primary election ballot, the date of the
                                    regular filing deadline for a candidate's application for a place on the ballot;
                                    (B) for an independent candidate, the date of the regular filing deadline for a candidate's application
                                    for a place on the ballot;
                                    (C) for a write-in candidate, the date of the election at which the candidate's name is written in;
                                    (D) for a party nominee who is nominated by any method other than by primary election, the date
                                    the nomination is made; and
                                    (E) for an appointee to an office, the date the appointment is made.

TEX. Elec. CODE ANN. § 141.001(a).


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record could exist that would impact Wooten’s eligibility. See e.g., Ferris v. Carlson, 314

S.W.2d 577 (Tex. 1958). To the extent there are any factual disputes as to a candidate’s

eligibility, they must be resolved in accordance with the comprehensive statutory regime

governing injunctive relief to prevent violations of the Election Code, rather than in a mandamus

proceeding. See ELEC. §§ 145.003(a), 273.081; In re Cullar, 320 S.W.3d 560, 564 (Tex. App.—

Dallas 2000, orig. proceeding). Accordingly, on a petition for mandamus, we look solely to the

public records that were before the County Chair and the statutes governing eligibility to serve as

a District Judge to determine whether mandamus relief is warranted.

          At the time the County Chair declared Wooten ineligible, public records relevant to her

eligibility included Wooten’s application, a Judgment of Suspension from the Texas Board of

Disciplinary Appeals (BODA), a later Order Terminating Suspension, and information

concerning Wooten maintained by the State Bar of Texas in its member directory. Those public

documents establish the following.

          Wooten was licensed to practice law in 1995. In 2011, she was convicted on nine counts

of various crimes. Wooten was later exonerated of each of the convictions by Writ of Habeas

Corpus in May 2017.

          On October 24, 2012, BODA entered a Judgment of Suspension detailing its findings that

each crime for which Wooten had been convicted was an “Intentional Crime” and “Serious

Crime,” suspending Wooten from the practice of law in the State of Texas until December 12,

2021, and requiring her to immediately surrender her Texas law license.3 The judgment further

ordered that during the term of suspension, Wooten “is prohibited from practicing law in Texas,

holding herself out as an attorney at law, performing any legal service for others, accepting any

     3
           The Texas Rules of Disciplinary Procedure require, as compulsory discipline, the disbarment or suspension of a member attorney who
has been convicted of an Intentional Crime, when that conviction becomes final, or who has accepted community supervision, with or without an
adjudication of guilt, for an Intentional Crime. See TEX. R. DISCIPLINARY P. 8.05–8.06.


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fee directly or indirectly for legal services, appearing as counsel in any proceeding in any Texas

court or before any Texas administrative body, or holding herself out to others or using her

name, in any manner, in conjunction with the words ‘attorney,’ ‘counselor,’ or ‘lawyer.’”

Although Wooten’s license had been suspended, her State Bar of Texas membership information

listed no public disciplinary history.    On June 7, 2017, BODA terminated suspension of

Wooten’s license to practice law. In doing so, it noted that on May 24, 2017, the 366th District

Court in Collin County vacated all nine felony counts as void ab initio, declaring Wooten was

acquitted of each and every allegation, following the Court of Criminal Appeals’ determination

in her co-defendants’ cases that there was insufficient evidence to support the convictions

because the allegations, even if true, were not crimes under Texas law. A copy of the Order on

Wooten’s First Amended 11.072 Writ of Habeas Corpus Declaring Actual Innocence as a Matter

of Law was attached to BODA’s Order Terminating Suspension. That 11.072 order provided, in

part, that

                . . . any legal disabilities rendered against Applicant as a result of the
        convictions in this cause are VOID and ORDERED SET ASIDE and that
        Applicant be immediately provided all release and relief from those legal
        disabilities.

        Wooten claims because her bar page stated she had no public disciplinary record and the

convictions underlying her suspension were voided and any legal disabilities ordered set aside,

the public records do not conclusively establish she was suspended until June 7, 2017 and, thus,

the public records do not support a declaration of ineligibility. As to Wooten’s Texas Bar page,

we note that information contained therein is largely controlled by the lawyer and his or her

diligence in updating the information. Moreover, if another singular document establishes

ineligibility, the relevant statute requires that the governing authority declare the candidate




                                                5
ineligible. Thus, Wooten’s argument that her Texas Bar page somehow undermines the County

Chair’s decision is unavailing.

       As to the district court’s order on Wooten’s writ of habeas corpus, while it clearly

precipitated BODA’s decision to terminate, not vacate, her suspension, it does not control over

BODA’s judgments with respect Wooten’s bar membership status or speak to the separate

question as to whether she was actually practicing law for the 4 years preceding the election.

The State Bar Act gives the supreme court administrative control over the State Bar and provides

a statutory mechanism for promulgating regulations governing the practice of law. See TEX.

GOV’T CODE ANN. § 81.001–.115. The supreme court has delegated its power to regulate the

practice of law to BODA. See Goldberg v. Comm’n for Lawyer Discipline, 265 S.W.3d 568, 575

(Tex. App.—Houston [1st Dist.] 2008, pet. denied). A district court has no power to grant relief

interfering with the exclusive authority of the supreme court, or BODA, acting as the supreme

court’s delegate. Id. Thus, even if the order on Wooten’s writ of habeas corpus could be read to

eliminate Wooten’s suspension, it would not control over BODA’s decision to terminate, versus

vacate, her suspension because the district court is powerless to interfere with BODA’s judgment

in a disciplinary matter; assuming that distinction would be controlling of the licensure

requirement.   See In re State Bar of Texas, 113 S.W.3d 730, 733 (Tex. 2003); see also,

Goldberg, 265 S.W.3d at 571, 577 (disbarred attorney’s attempt to use a district court’s order

rendering underlying criminal conviction, made the basis for his disbarment, a nullity,

completely releasing the attorney from all penalties and legal disabilities resulting from the

offense or crime, setting aside and wiping away the verdict, and dismissing the prosecution to

obtain a declaration concerning his bar membership status failed because it was an attempt to

usurp the supreme court’s exclusive authority to regulate the practice of law, specifically, its



                                               6
authority to regulate the licensure, discipline, disbarment, and reinstatement of attorney’s

licensed in Texas). The last order both parties have brought to our attention is BODA’s order

terminating rather than vacating Wooten’s suspension.        Although BODA has the power to

vacate, not just terminate, its disciplinary orders—see Goldberg, 265 S.W.3d at 577—either

Wooten did not seek from BODA vacature of her suspension or did not challenge BODA’s

decision to terminate, rather than vacate, her suspension.

       Next, Wooten claims the public records do not conclusively establish she was not

practicing law during the suspension period because the Judgment of Suspension only prohibited

her from practicing in Texas state courts, not federal courts or Indian tribal courts. Be that as it

may, the practice of law requirement “can only be satisfied when that practice is conducted in

conformity with the other statutes governing the practice of law.” In re Jones, 978 S.W.2d 648,

652 (Tex. App.—Amarillo 1998, orig. proceeding [mand. denied]). The practice of law as

pertains to Wooten’s license and membership in the State Bar is defined without reference to

whether her conduct is in state or federal court or Indian tribal courts. See TEX. GOV’T CODE

ANN. § 81.101(a) (the ‘practice of law’ means the preparation of a pleading or other document

incident to an action or special proceeding or the management of the action or proceeding on

behalf of a client before a judge in court as well as a service rendered out of court, including the

giving of advice or the rendering of any service requiring the use of legal skill or knowledge,

such as preparing a will, contract, or other instrument, the legal effect of which under the facts

and conclusions involved must be carefully determined.”). As we recited above, BODA ordered

Wooten to not practice law in the broadest terms during the term of suspension, ordering Wooten

“is prohibited from practicing law in Texas, holding herself out as an attorney at law, performing

any legal service for others, accepting any fee directly or indirectly for legal services, appearing



                                                 7
as counsel in any proceeding in any Texas court or before any Texas administrative body, or

holding herself out to others or using her name, in any manner, in conjunction with the words

‘attorney,’ ‘counselor,’ or ‘lawyer.’”                      Because Wooten’s license had been suspended, she could

not practice law in Texas. See In re Jones, 978 S.W.2d at 652. Moreover, in determining

whether a candidate is eligible, it is not the province of the County Chair to undertake an analysis

of the practices of the candidate to determine whether he or she is actually a practicing lawyer.

See Ferris, 314 S.W.2d at 579. Additionally, had Wooten been practicing law in any court,

Texas state court or other court, while suspended, doing so would have been contrary to the face

of the record before the County Chair and this Court.4

          Finally, Wooten argues that the balance of the equities favors requiring her to be placed

on the ballot.            Wooten’s equity argument ignores the fact that party officials are neither

authorized to ignore facts reflected by a public record establishing disqualification of a proposed

candidate, nor are they permitted to go outside the public record. McClelland v. Sharp, 430

S.W.2d 518, 522 (Tex. App.—Tex. App.—Houston [14th Dist.] 1968, orig. proceeding) (per

curiam). Sitting in mandamus review from a narrow administrative determination, we likewise

are not authorized to act outside the mandate of the provisions that govern candidate eligibility

and we cannot judicially amend a statute, which is essentially what Wooten asks this Court to do.

See Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015).

          Having rejected Wooten’s arguments concerning her Texas Bar page and the order on her

writ of habeas corpus, and having concluded that this Court, like the County Chair, is constrained

to consider whether any of the public records establish Wooten is ineligible to serve as a District

Judge, we now address Wooten’s Judgment of Suspension and the Termination of Suspension.


   4
       We note that the local rules of federal courts require attorneys to notify the courts of state bar suspension and call for same.


                                                                          8
These documents conclusively establish Wooten’s license to practice law in the State of Texas

was suspended from October 24, 2012 to June 7, 2017. An attorney whose license is suspended

cannot be a practicing lawyer because without an active license the attorney is not a member in

good standing with the Texas State Bar and any practice of law is prohibited. TEX. STATE BAR

R. art. I(6), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. a.; In re Jones, 978 S.W.2d

at 652–53.    Accordingly, public records before the County Chair conclusively established

Wooten had not been a practicing lawyer for the four years preceding the November 2020

election, and pursuant to the mandatory language “shall” in subsection (g) to section 145.003 of

the Election Code, the County Chair was required to declare her ineligible and did so. ELEC. §

145.003(g).

       Because Wooten failed to show she is entitled to the relief she seeks by writ of

mandamus we denied her petition. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36

(Tex. 2004) (orig. proceeding); see also, In re Pena, 05-17-00209-CV, 2017 WL 2062274, at *2

(Tex. App.—Dallas Mar. 6, 2017, orig. proceeding).




                                                            PER CURIAM


191499SF.P05




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