                                                                         FILED
                                                                         14-0470
                                                                         10/30/2015 1:41:37 PM
                                                                         tex-7619469
                                                                         SUPREME COURT OF TEXAS
                                                                         BLAKE A. HAWTHORNE, CLERK

                               No. 14-0470

                IN THE SUPREME COURT OF TEXAS


                    NANDITA BERRY, in her official capacity
                       as Secretary of State of Texas,
                                          Petitioner/Cross-Respondent,

                                      vs.

    TARRANT COUNTY DEMOCRATIC PARTY, STEVE MAXWELL, in his official
      capacity as Chair of the Tarrant County Democratic Party, TEXAS
     DEMOCRATIC PARTY, and GILBERTO HINOJOSA, in his official capacity
                   as Chair of the Texas Democratic Party,
                                          Respondents/Cross-Petitioners.


            ON PETITION FOR REVIEW FROM THE FOURTH COURT OF APPEALS
                               SAN ANTONIO, TEXAS



                         MOTION FOR REHEARING



Renea Hicks                             Chad W. Dunn
LAW OFFICE OF MAX RENEA HICKS           BRAZIL & DUNN LLP
State Bar No. 09580400                  State Bar No. 24036507
101 West 6th Street, Suite 504          4201 Cypress Creek Pkwy., Ste. 530
Austin, Texas 78701-2934                Houston, Texas 77068
Tel: (512) 480-8231                     Tel: (281) 580-6310
Fax: (512) 480-9105                     Fax: (281) 580-6232
rhicks@reneahicks.com                   chad@brazilanddunn.com

Attorney for Tarrant County            Attorney for Texas Democratic
Democratic Party Respondents           Party Respondents
                                            TABLE OF CONTENTS

Index of Authorities ........................................................................................ii

Rehearing Argument .......................................................................................1

     The Court should hold on rehearing that, to the extent he had discretion
     as to the Brimer fee recovery requests, the Secretary abused his discretion.

Conclusion ......................................................................................................3

Certificate of Compliance ...............................................................................5

Certificate of Service.......................................................................................5




                                                            i
                                    INDEX OF AUTHORITIES

Cases

Rodriguez v. Service Lloyd’s Ins. Co., 997 S.W.2d 248 (Tex. 1999)....................3

Texas Coast Utilities Coalition v. RRC, 423 S.W.3d 355 (Tex. 2014) ................3

Rules and administrative references

1 Tex. Admin. Code § 81.134(c) (2003) ..........................................................2

28 Tex. Reg. 8218 (Sept. 26, 2003) .................................................................2




                                                     ii
                           MOTION FOR REHEARING
   The political party respondents move for rehearing of the Court’s per curiam

decision of October 30, 2015. The grounds follow.

   The political party respondents seek rehearing as to the decision on the merits,

found at pages 7-14 of the slip opinion of October 30, 2015. The Court on rehearing

should hold that, to the extent the Secretary had discretion in allowing or

disallowing the requested fee reimbursements in the Brimer matter, he abused that

discretion.

   The Court’s decision leaves the chief election officer of Texas completely

unaccountable in administration of a duty where even-handedness and

accountability must be paramount. The upshot of the ruling is that there is no legal

principle at all governing the Secretary in his decisions about when and whether to

reimburse political party primary expenses. Under the ruling, the Secretary is not

required to provide any explanation for a reimbursement decision, whether it be for

or against a requested reimbursement. He now is authorized to treat two factually

indistinguishable reimbursement requests in diametrically opposed ways. And

whether he took such irreconcilable positions based on whim, partisan favoritism,

personal dislikes, or principled reasoning is of no legal consequence whatever. No




                                         1
explanation is required, and what he says in any individual situation is the law, even

if there is no legal rationale underpinning it.

    This decision of the Court cannot be reconciled with the language of the

administrative rule at issue, with the explicit basis for that rule, or with settled

administrative law principles.

    The rule’s language. The 2003 rule—Rule 81.134—is the Secretary’s own

rule. He formulated it, and he is bound by it. It directs that he “shall” provide

attorney fee reimbursements if the conditions otherwise warrant it. The Court’s

ruling effectively eliminates the “shall.” In its stead, the phrase “may or may not,

as he wishes but need not explain” is substituted.

    The reason for the rule. The reason for the rule was the opposite of the

principle established in the Court’s ruling. The Secretary explained that it was

being promulgated so that there would henceforth be “uniformity” in the

Secretary’s application, interpretation, and operation of the Election Code

provisions it was implementing. 28 Tex. Reg. 8218 (Sept. 26, 2003). After the

Court’s ruling, “uniformity” has nothing to do with applying the rule. After the

rule’s 2003 promulgation, the Secretary ruled one way in 2006 on the factual

situation forming the basis for this case’s fee recovery claim. In 2008—in the

Brimer fee recovery request—he ruled in precisely the opposite way. There had



                                            2
been no legal changes at all in the relevant statutes or rules between 2006 and 2008.

The only thing that changed were the individuals administering them—and the

reimbursement decisions they made. Permitting this approach—allowing the chief

election officer of the State to rule one way one election cycle and precisely the

opposite the next, without any intervening change in the governing legal rules—is

the opposite of using the rule to achieve uniformity.

   Conflicting administrative law principles. The Court has long disapproved

of Texas agencies engaging in ad hoc rulemaking. See Rodriguez v. Service Lloyd’s

Ins. Co., 997 S.W.2d 248, 255 (Tex. 1999). And it has explained that deference is

owed only to “reasonable” agency interpretations of statutes and rules within their

purview. See Texas Coast Utilities Coalition v. RRC, 423 S.W.3d 355, 363 n.16 (Tex.

2014). An opaque, unexplained decision to use a rule one way at one time and

precisely the opposite the next is ad hoc rulemaking of the most blatant sort. And to

make the second, different decision without any explanation whatever of the reason

for the 180-degree about-face is not a “reasonable” agency interpretation when the

decision is unaccompanied by any reasoning.

                                    CONCLUSION
   Rehearing should be granted. The Court should vacate its decision. It then

should deny the Secretary’s petition for review. Alternatively, if the Secretary’s



                                          3
petition for review is granted, the Court should affirm the judgment of the court of

appeals on the fee recovery claim.

                                          Respectfully submitted,

                                          LAW OFFICE OF MAX RENEA HICKS
                                           /s/ Renea Hicks
                                          Renea Hicks - 09580400
                                          Attorney at Law
                                          101 West 6th Street
                                          Austin, Texas 78701
                                          Telephone: (512) 480-8231
                                          Facsimile: (512) 480-9105
                                          rhicks@renea-hicks.com

                                          Attorney for Tarrant County Democratic
                                          Party Respondents


                                          BRAZIL & DUNN, LLP
                                           /s/ Chad Dunn
                                          Chad W. Dunn - 24036507
                                          K. Scott Brazil - 02934050
                                          4201 Cypress Creek Parkway, Suite 530
                                          Houston, Texas 77068
                                          Telephone: (281) 580-6310
                                          Facsimile: (281) 580-6362
                                          chad@brazilanddunn.com
                                          scott@brazilanddunn.com

                                          Attorney for Texas Democratic Party
                                          Respondents




                                         4
                         CERTIFICATE OF COMPLIANCE
    Based on the word count provided by the computer program used to prepare
this response, counsel states that the number of words in the pertinent pages of the
document is 668.

                                           /s/ Renea Hicks
                                          Renea Hicks

                            CERTIFICATE OF SERVICE
   I hereby certify that a true and correct copy of this Motion for Rehearing has
been served through the electronic filing system on the following counsel of record
on October 30, 2015:

Dustin M. Howell
ASSISTANT SOLICITOR GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
dustin.howell@texasattorneygeneral.gov

                                              /s/ Renea Hicks
                                             Renea Hicks




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