                                   Fourth Court of Appeals
                                           San Antonio, Texas
                                         DISSENTING OPINION
                                              No. 04-13-00069-CV

    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,
                                              Appellants

                                                          v.

                  John STEEN, 1 In His Official Capacity as Secretary of State of Texas,
                                               Appellees

                            From the 345th District Court, Travis County, Texas
                                    Trial Court No. D-1-GN-09-00172
                           The Honorable Amy Clark-Meachum, Judge Presiding

             DISSENT TO DENIAL OF MOTION FOR EN BANC RECONSIDERATION
Dissenting Opinion by: Marialyn Barnard, Justice, joined by Karen Angelini, Justice

Sitting en banc: Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Sandee Bryan Marion, Justice (not participating)
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: May 7, 2014

           I respectfully dissent from the decision to deny appellee’s motion for en banc

reconsideration because appellants clearly did not meet the statutory prerequisites necessary to

invoke a waiver of sovereign immunity under section 173.086(a) of the Texas Election Code.


1
    Nandita Berry was sworn in as Texas Secretary of State on January 7, 2014.
Dissenting Opinion                                                                    04-13-00069-CV


Because the supreme court has specifically held that such statutory prerequisites are jurisdictional,

and the record does not establish appellants met the statutory prerequisites in section 173.086(a),

the trial court lacked subject-matter jurisdiction, and the trial court’s order should be vacated and

this appeal dismissed. Accordingly, I must dissent to the decision to deny appellee’s motion for

en banc reconsideration.

        As set forth in the opinion, appellants sought reimbursement from the Texas Secretary of

State for attorney’s fees incurred in defending an election contest. The appellants’ challenge to

appellee’s denial of their reimbursement request was based on section 173.086(a) of the Elections

Code. Section 173.086(a) of the Election Code provides:

        The authority who submitted a statement of estimated primary election expenses
        under this subchapter may challenge in a district court in Travis County the amount
        of state funds approved by the secretary of state for disbursement.

TEX. ELEC. CODE ANN. § 173.086(a) (West 2010).

        When the Secretary of State denied the request, stating the requested fees were “unrelated

to the administration of the primary election,” appellants filed suit against appellee, the Secretary

of State. In response, appellee filed a general denial and asserted the defense of sovereign

immunity, claiming appellants failed to meet the statutory prerequisites. After a bench trial, the

trial court denied appellants’ requested relief, and appellants perfected this appeal. Upon review,

this court held the statutory prerequisites in section 173.086(a) were mandatory and jurisdictional.

However, we held appellants met the burden of establishing the statutory prerequisites by inferring

that a statement of primary expenses — the prerequisite in section 173.086(a) — was filed or the

appellee waived the prerequisite. Therefore, we held immunity was waived.

        I contend, however, this court erred in making such inferences, i.e., findings. In section

311.034 of the Texas Government Code, the Legislature provided that statutes “shall not be



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Dissenting Opinion                                                                     04-13-00069-CV


construed as a waiver of sovereign immunity unless the waiver is effected by clear and

unambiguous language.” TEX. GOV’T CODE ANN. § 311.034 (West 2013). The Texas Supreme

Court has held time and again that statutory waivers of immunity must be construed narrowly.

See, e.g., Tex. Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013); In re

Smith, 333 S.W.3d 582, 587 (Tex. 2010); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d

653, 655 (Tex. 2008). And, in fact, “any purported statutory waiver of sovereign immunity should

be strictly construed in favor of retention of immunity.” Prairie View A&M Univ. v. Chatha, 381

S.W.3d 500, 513 (Tex. 2012) (emphasis added); see Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 697 (Tex. 2003). As stated by the supreme court in Taylor, if there is room to doubt,

we are less likely to find waiver. 106 S.W.3d at 697.

        To support its decision to infer findings in the absence of a specific stipulation with regard

to the filing of a statement of estimated primary expenses, this court relies on Lawler v. Lomas &

Nettelton Mortg. Investors, 691 S.W.2d 593 (Tex. 1985) and Cummins & Walker Oil Co. v. Smith,

814 S.W.2d 884 (Tex. App.—San Antonio 1991, no writ). I do not believe either case supports or

compels the court’s decision to infer that appellants filed the required statement or that appellee

waived immunity.

        In Lawler, which is not a sovereign immunity case, the supreme court held that when an

appellate court reviews a case tried upon an agreed statement of facts, i.e., stipulations, it may not

draw inferences or find facts that are not included in the agreed statement unless such inferences

or facts are “necessarily compelled by the agreed upon evidentiary facts.” 691 S.W.2d at 595.

Similarly, in Cummins & Walker, again, not a sovereign immunity case, this court held that when

a matter is tried on an agreed statement of facts, the reviewing court presumes all the necessary




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Dissenting Opinion                                                                    04-13-00069-CV


facts were before the trial court and “will not draw any inference or find any fact not embraced in

the agreement.” 814 S.W.2d at 886.

        In the case now before this court, the court admits the stipulated facts on which this matter

was tried “do not include any stipulation on whether [appellants] filed a statement of estimated

primary expenses.” Despite the absence of evidence, this court holds it may infer such a filing, or

a waiver of immunity by appellee, because appellee reimbursed appellants “for their Cerda suits’

attorney’s fees.” Thus, according to this court’s opinion, payment of the Cerda fees “necessarily

compelled” a finding that the statement of estimated expenses was filed or appellee waived

immunity. I strongly disagree, particularly given that in sovereign immunity cases, doubts are to

be resolved in favor of retention of immunity.

        Obviously, appellee was not required to pay the Cerda fees if appellants failed to file a

statement of estimated primary expenses, but this does not mean appellee did not voluntarily pay

the fees or erroneously pay the fees in the absence of the statement. In other words, appellee’s

decision to pay the Cerda fees does not affirmatively establish that a statement of expenses was

filed, nor does it “necessarily compel” such a finding. Nor is a finding that a statement of expenses

was filed or appellee waived immunity “embraced” in the stipulations filed by the parties.

Moreover, it is anomalous to infer such a finding from the stipulations when appellee asserted

immunity from the outset. By making this inference, this court fails to engage in a narrow

construction or one that favors retention of immunity — directly contrary to the mandate of both

the legislature and the supreme court.

        Given the backdrop from the legislature and the supreme court, it seems to me that making

factual inferences (finding facts) in order to find waiver of sovereign immunity from a record that

contains absolutely no evidence with regard to compliance with the statutory prerequisites or an



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Dissenting Opinion                                                                04-13-00069-CV


affirmative waiver is manifestly erroneous.      If reviewing courts are allowed to make such

inferences, then the mandates of narrow construction and construction in favor of immunity

retention are like a lion without teeth. Given the legislature’s repeated amendment and enactment

of statutes favoring immunity, I cannot believe the type of inference-finding engaged in by this

court will find favor.

        Because appellants failed to establish they met the statutory prerequisites necessary to

invoke waiver of sovereign immunity under section 173.086(a), and I do not believe this court may

engage in the type of inference-finding upon which the decision is based, I would hold immunity

was not waived. Accordingly, I would hold the trial court lacked subject-matter jurisdiction and

would vacate the trial court’s order and dismiss the appeal.


                                                 Marialyn Barnard, Justice




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