      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00314-CV



                                        In re Chris Osborn


                  ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY



                             MEMORANDUM OPINION


               In this original proceeding, relator Chris Osborn asks this Court to compel respondent

Susan Brock, City Clerk for the City of Taylor, to declare D. Scott Green, real party in interest,

ineligible to serve on the City Council, district 4, due to Green’s residency ineligibility under the

Texas Election Code.1 Osborn, also a candidate for the same council position, contends that public

documents conclusively establish that Green is ineligible because he did not continuously reside in

the district for six months prior to the election filing deadline as required by section 141.001 of the

election code. See Tex. Elec. Code § 141.001.

               Section 145.003 of the Election Code provides the procedures for obtaining a

declaration that a candidate is ineligible for office. See id. § 145.003. A candidate may be declared

ineligible only if: (1) the information on the candidate’s application for a place on the ballot



       1
          This Court has jurisdiction to consider a request for mandamus relief 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 § 273.061; see also Tex. Gov’t Code § 22.221 (“Each court of appeals may issue a writ of
mandamus and all other writs necessary to enforce the jurisdiction of the court.”).
indicates that the candidate is ineligible for office; or (2) facts indicating that the candidate is

ineligible are conclusively established by another public record. Id. § 145.003(f). When the

appropriate authority is 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. Id. § 145.003(g). If the record conclusively establishes that a candidate

is ineligible, the authority must declare the candidate ineligible. Id. An authority’s obligation to

declare a candidate ineligible when required to do so under section 145.003 is a “duty imposed by

law” and is subject to mandamus relief. See id. § 273.061; see also In re Sanchez, 366 S.W.3d 255,

257 (Tex. App.—San Antonio 2012, orig. proceeding) (explaining that party chairman had duty to

declare candidate ineligible if public record established that candidate was ineligible and, because

he did not, mandamus relief would be appropriate).

               Here, in his petition for writ of mandamus, Osborn contends that (1) certain “public

records” conclusively demonstrate Green’s ineligibility and (2) upon being presented with these

documents, Brock refused to declare Green ineligible. In response, both Green and Brock argue

that the documents provided by Osborn do not qualify as “public records” and that, in any event, the

documents fail to conclusively demonstrate Green’s ineligibility. In addition, Brock has asserted

that Osborn lacks standing to bring this mandamus action because he did not file his petition until

after it was too late to remove Green’s name from the ballot. Standing implicates our subject-matter

jurisdiction, and thus our power to decide the merits of this dispute. Texas Ass’n of Bus. v. Texas

Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). Consequently, we first examine whether Osborn

has standing to maintain this action.



                                                 2
               The standing issue presented in this case turns on whether the interest Osborn

seeks to protect is one that is unique to him as an opposing candidate or whether it is simply one that

is shared by the public at large. Generally, challenges to the eligibility of candidates “are matters

of public concern” and must be prosecuted by the state. Allen v. Fisher, 9 S.W.2d 731, 732 (Tex.

1928). These quo warranto proceedings provide the exclusive means by which the public may

protect itself from unlawful occupancy of a public office.2 Norville v. Parnell, 118 S.W.3d 503, 505

(Tex. App.—Dallas 2003, pet. denied); Walton v. City of Midland, 287 S.W.3d 97, 101 (Tex.

App.—Eastland 2009, pet. denied). Consequently, a voter having no special interest cannot bring

suit seeking the removal of an ineligible candidate. Allen, 9 S.W.2d at 732.

               Based on the undisputed facts that Green was on the ballot and early voting had

already begun when Osborn filed his petition for writ of mandamus, we conclude that Green could

no longer be removed from the city council election at the time Osborn sought relief in this Court.

That is, under the Election Code, Green could no longer be removed from the ballot, even if he were

ultimately declared by Brock to be ineligible. See Tex. Elec. Code § 145.096 (a) (providing that

ineligible candidate’s name must be placed on the ballot if, at the latest, the candidate is declared

ineligible after 5 p.m. of second day before early voting). Further, all votes cast for Green were

required to be counted. See id. § 145.005(a) (providing that votes for ineligible candidate must be


       2
          A writ of quo warranto is an ancient common-law writ that gave the king an action against
a person who claimed or usurped any office, franchise, or liberty, to inquire by what authority that
person supported the claim to hold office. Bexar Metro. Water Dist. v. City of Bulverde, 156 S.W.3d
79, 86 (Tex. App.—Austin 2004, pet denied). In these proceedings, authorized by statute since 1879,
the State of Texas, through an appropriate representative, may challenge a person’s right to hold
public office. Tex. Civ. Prac. & Rem. Code § 66.001; Norville v. Parnell, 118 S.W.3d 503, 505 n.8
(Tex. App.—Dallas 2003, pet. denied).

                                                  3
counted when name appears on ballot). Consequently, even if Brock did declare Green to be

ineligible, the city council position would not default to Osborn. Instead, if Green were declared

ineligible but still garnered the necessary votes for the election, a vacancy in the position would

be created. See id. § 145.005(b). Under the Taylor City Charter, this vacancy would be filled by

a special election for the remainder of the unexpired term. See Taylor, Tex., Home Rule Charter,

§ 4.4 (1982). Osborn would be free to seek the vacant position, along with any number of Taylor

residents of the district.

                Any standing Osborn had to challenge the candidacy of his opponent ceased to

exist once Green could no longer be removed from the ballot. At that point, Osborn’s interest in

having Green declared ineligible is simply the same as that shared by the general public. Green’s

ineligibility to hold the office became a matter solely of public concern and any attack on Green’s

eligibility would have to be brought in a quo warranto proceeding. Accordingly, we conclude that

Osborn does not have standing to bring this action, and we dismiss the petition for want of

jurisdiction.



                                             __________________________________________

                                             Scott K. Field, Justice

Before Chief Justice Jones, Justices Rose and Field

Filed: May 15, 2013




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