                                     NUMBER 13-08-00330-CV

                                     COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG
____________________________________________________________

                    IN RE VANESSA CAHILL
____________________________________________________________

                 On Petition for Writ of Mandamus
____________________________________________________________

                                                   OPINION

      Before Chief Justice Valdez and Justices Rodriguez and Benavides
                        Opinion by Chief Justice Valdez

         Relator, Vanessa Cahill, filed a petition for writ of mandamus in the above cause on

May 23, 2008, asking this Court to compel Michael A. Bertuzzi, the Nueces County

Republican Chairman (“County Chair”), to grant relator access to copies of precinct

convention minutes. After duly considering the petition and the County Chair’s response

thereto, the Court conditionally GRANTS the petition for writ of mandamus as stated

herein.1

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           In her petition for writ of m andam us, relator identified the Republican Party of Texas as the real party
in interest and Michael A. Bertuzzi as the respondent. See T EX . R. A PP . P. 52.2. Relator has subsequently
identified Michael A. Bertuzzi as the real party in interest and has notified this Court that the Republican Party
of Texas should have “no further involvem ent in this m atter.” The Court DENIES the “Motion to Extend Tim e
to File Response to W rit of Mandam us, Motion to Dism iss and Motion for Dam ages for Frivolous Pleadings”
filed by the Republican Party of Texas.
                                       I. BACKGROUND

       In March 2008, Cahill, who was elected as a delegate to the Republican County

Convention for Nueces County, requested that the County Chair produce copies of the

precinct minutes/records from the precinct meetings for every precinct in Nueces County.

The County Chair refused to produce these records, and this original proceeding ensued.

Cahill argues that the Texas Election Code imposes on the County Chair the duty to

maintain, as public information, copies of all Nueces County precinct minutes for the

remainder of that election year. In response, the County Chair contends that (1) this Court

lacks jurisdiction over the petition, (2) the petition for writ of mandamus is deficient, (3) the

records are not public information, (4) the County Chair has no duty to provide access to

these documents, and (5) Cahill has an adequate remedy through the procedures and

processes within the Republican Party itself.

                                       II. JURISDICTION

       Our jurisdiction over this original proceeding is delineated by section 273.061 of the

Texas Election Code:

       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 (Vernon 2003); see, e.g., In re Torry, 244 S.W.3d 849,

851 (Tex. 2008) (orig. proceeding) (per curiam). The election code further provides that

“[t]he performance of a duty placed by this code on an officer of a political party is

enforceable by writ of mandamus in the same manner as if the party officer were a public

officer.” TEX . ELEC . CODE ANN . § 161.009 (Vernon 2003); In re Dupont, 142 S.W.3d 528,

531 (Tex. App.–Fort Worth 2004, orig. proceeding). Accordingly, this Court has jurisdiction

to consider relator's petition for writ of mandamus and to compel the performance of any

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duty imposed by law in connection with the holding of an election or political party

convention. See TEX . ELEC . CODE ANN . §§ 273.061; In re Jackson, 14 S.W.3d 843, 846

(Tex. App.–Waco 2000, orig. proceeding).

       Our mandamus jurisdiction, and thus, the scope of our review, is confined to that

issue which is clearly regulated by statute, that is, access to the precinct minutes.

Otherwise, as long recognized by the Texas Supreme Court, the judiciary has no power

to control the electoral process or matters referable to the internal issues of political

parties:

       Except to the extent that jurisdiction is conferred by statute or that the subject
       has been regulated by statute, the courts have no power to interfere with the
       judgments of the constituted authorities of established political parties in
       matters involving party government and discipline, to determine disputes
       within a political party as to the regularity of the election of its executive
       officers, or their removal, or to determine contests for the position of party
       committeemen or convention delegates.

Wall v. Currie, 147 Texas 127, 129, 213 S.W.2d 816, 817 (1948) (quoting with approval

29 C.J.S. Elections § 88); see Dick v. Kazen, 156 Tex. 122, 126, 292 S.W.2d 913, 916

(Tex. 1956) (“The holding of elections and the election procedure is a part of the political

power of the State, and except as provided by statute, the judiciary has no control over

them.”); Runyon v. Kent, 239 S.W.2d 909, 910 (Tex. Civ. App.–San Antonio1951, writ

re'fd). Accordingly, we reach no other issue herein.

                         III. THE PETITION FOR W RIT OF MANDAMUS

       The County Chair contends that Cahill’s petition for writ of mandamus is defective

because her verification is deficient. Rule 52.3 of the Texas Rules of Appellate Procedure

provides for the form and content of a petition in an original proceeding. TEX . R. APP. P.

52.3. Specifically, rule 52.3 provides that "[a]ll factual statements in the petition must be

verified by affidavit made on personal knowledge by an affiant competent to testify to the


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matters stated." See id.

         In this case, Cahilll’s verification asserts that the factual statements in the petition

are true and correct “to the best of her knowledge.” Such alleged defect is subject to

correction, see Rosedale Partners, Ltd. v. 131st Judicial Dist. Court, Bexar County, 869

S.W.2d 643, 646 (Tex. App.–San Antonio 1994, orig. proceeding), and, given the exigency

of this original petition, we do not consider this matter preclusive of our consideration of the

issue herein. See, e.g, Tinsley v. Downey, 822 S.W.2d 784, 785 (Tex. App.–Houston [14th

Dist.] 1992, orig. proceeding) (granting mandamus relief despite presence of similar

verification). But see Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); Price

v. Am. Nat'l Ins. Co., 113 S.W.3d 424, 429-30 (Tex. App.–Houston [1st Dist.] 2003, no

pet.).

         The County Chair further asserts that the exhibits to relator’s petition for writ of

mandamus are not admissible in evidence and, accordingly, relator lacks any “valid

evidence” to support her assertions. However, the Texas Rules of Appellate Procedure

do not require that any such exhibits be admissible evidence. See generally TEX . R. APP.

P. 52.3(j), 52.7.2

                                                IV. ANALYSIS

         The Texas Election Code contains specific provisions governing the duties of the

County Chair and the creation and retention of the precinct minutes at issue. Under

section 174.027 of the election code, governing the “Records of Convention,” the

convention chair of a precinct convention makes lists of the names and residential



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          In this regard, we note that the structure of the appellate rules contem plate that original proceedings
typically arise from m atters in a lower court, and thus require the record to include “certified or sworn”
docum ents and “properly authenticated” transcripts from “any underlying proceeding.” See T EX . R. A PP . P.
52.7. Such requirem ents are problem atic in cases, as unique as the instant one, which cam e to this Court
on original jurisdiction without progressing through an “underlying proceeding” in the trial court.


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addresses of the delegates and any alternatives and precinct convention participants. See

TEX . ELEC . CODE ANN . § 174.027(a),(b) (Vernon 2003). The convention chair delivers the

originals and copies to the County Chair. See id. § 174.027(c) (Vernon 2003). The County

Chair retains the copies of the lists until the end of the voting year in which they are

received, see id. § 174.027(d) (Vernon 2003), and “the original lists are not public

information.” See id. § 174.027(f) (Vernon 2003). Section 161.004 of the election code,

entitled “Party Document as Public Information,” provides that, “[i]f a document, record, or

other paper is expressly required by this title to be filed, prepared, or preserved, it is public

information unless this title provides otherwise.”        See id. § 161.004 (Vernon 2003)

(emphasis added).

       The Republican Party Rules provide further information regarding the nature of the

precinct minutes at issue herein. The Rules provide, in the general rules for precinct

conventions, under the heading of “Chairman’s Responsibilities:”

       a.     Record of the Precinct Convention

              The Permanent Chairman of the Precinct Convention shall be
              responsible for seeing that an accurate written record (minutes) is
              kept of all convention proceedings, including the list of persons
              present and their residence addresses and a list of delegates and
              alternates elected to the county or Senatorial District convention with
              residence addresses, including towns shown thereon.                The
              Permanent Chairman of the Precinct Convention shall record the list
              of persons present and the list of delegates and alternates elected to
              the county or Senatorial District Convention in triplicate. A signed
              copy of the written record shall be available for copying by any
              participant in the convention for a period of thirty (30) minutes
              immediately following adjournment of the convention. Upon request,
              the permanent chairman shall certify any correct copy.

       b.     Transmittal of Precinct Convention Minutes: The Permanent
              Chairman of the Precinct Convention shall sign and safely transmit to
              the county chairman no later than the third day after the date of the
              precinct convention or deposit in the mail not later than the second
              day after the date of the precinct convention such record (minutes)
              and a copy thereof, and maintain a third copy for himself at least until

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              the end of that year’s biennial state convention. In multi-district
              counties, the County Chairman shall deliver the original record to the
              temporary chairman of the Senatorial District conventions. The copy
              shall be public record.

Rule 22 of the Rules of the Republican Party (emphasis added).

       Based on the foregoing, the County Chair is in possession of copies of the

requested minutes and those copies are a matter of “public record” or “public information.”

Nevertheless, the County Chair contends that he has no duty to provide access to the

requested records. We conclude that the duty to provide access to public records is

provided by statute or necessarily implied from other powers and duties given or imposed

by statute. Otherwise, the County Chair’s reading of the relevant statutes and rules would

frustrate the legislative mandate that the “information is public unless this title provides

otherwise.” See TEX . ELEC . CODE ANN . § 161.004. We, therefore, hold that the County

Chair has a statutory duty to retain copies of these records and the copies are public

records. Accordingly, the County Chair has the duty to provide a mechanism for the review

of these records by the public.

       Finally, the County Chair contends that relator has an adequate remedy through the

procedures and processes of the Republican Party because the party rules provide for the

resolution of such disputes within the party. While the party rules provide for the resolution

of certain disputes within the party, they neither provide a mechanism for reviewing the

instant documents at this point in time, nor do they allow for a timely resolution of this

matter. See, e.g., In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig.

proceeding) (in determining whether appeal is an adequate remedy, appellate courts

consider whether the benefits outweigh the detriments of mandamus review). Moreover,

given the exigent nature of the instant case, the party’s dispute resolution proceeding may

come too late to provide relator with any meaningful relief. Thus, we cannot agree that

                                              6
relator has an otherwise adequate remedy.

                                      V. CONCLUSION

       The Court, having examined and fully considered the petition for writ of mandamus

and response thereto, is of the opinion that relator has shown herself entitled to the relief

sought. We conditionally grant Cahill’s petition for writ of mandamus without hearing oral

argument, see TEX . R. APP. P. 52.8(c), and direct the County Chair to allow Cahill

immediate access to the precinct minutes at issue and to notify the Clerk of this Court by

5:00 p.m. tomorrow that he has done so. We are confident that the County Chair will

promptly comply, and our writ will issue only if he does not.



                                                  ______________________
                                                  ROGELIO VALDEZ,
                                                  Chief Justice

Memorandum Opinion delivered and filed
this the 3rd day of June, 2008.




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