                                                                                        ACCEPTED
                                                                                     02-17-00346-cv
                                                                         SECOND COURT OF APPEALS
                                                                               FORT WORTH, TEXAS
                                                                                 12/21/2017 3:07 PM
                                                                                     DEBRA SPISAK
                                                                                             CLERK

                             NO.02-17-00346-CV
                           In the Court of Appeals                  FILED IN
                           Second District of Texas          2nd COURT OF APPEALS
                                                               FORT WORTH, TEXAS
                             Fort Worth, Texas
                                                             12/21/2017 3:07:22 PM
                                                                 DEBRA SPISAK
                                                                      Clerk
                City of Forest Hill, Texas, and Brigette Mathis
                                  Appellants,
                                       v.
          Michielle Benson, in her official capacity and individually,
                                   Appellee.


   On Appeal from the 153rd Judicial District Court of Tarrant County, Texas
Cause No.153-290222-17; the Honorable Susan Heygood McCoy Presiding


                             APPELLEE’S BRIEF




                                            HAROLD D. HAMMETT
                                            State Bar No. 08855000
                                            4330 W. Vickery Blvd., Ste 140
                                            Fort Worth, Texas 76107
                                            Telephone: 817-820-3108
                                            Facsimile: 817-882-6955
                                            hammettlaw@att.net
                                            ATTORNEY FOR APPELLEE




                     ORAL ARGUMENT NOT REQUESTED                                 1
TO THE HONORABLE COURT OF APPEALS:


                   STATEMENT REGARDING ORAL ARGUMENT
        Oral argument would be of little or no help to the Court because crucial facts

are undisputed. But Appellee would welcome oral argument if the Court requests it.




Appellee’s Brief                                                                     2
                                 TABLE OF CONTENTS
Statement Regarding Oral Argument………………………………………………2
Table of Contents…………………………………………………………………...3
Index of Authorities………………………………………………………………...5
Statement of the Case……………………………………………………………….6
Statement of Issues Presented for Review………………………………………….7
Statement of Facts…………………………………………………………………..8
Summary of the Argument………………………………………………………...11
Argument and Authorities…………………………………………………………12
Appellee’s Issue No. 1:
        THE DISTRICT COURT CORRECTLY GRANTED JUDGMENT IN
        FAVOR OF BENSON……………………………………………………..12
        A.         Section 141.033 is mandatory and governs this case…………………12
        B.         Retroactive incompatibility applies also to the second application
                   filing, not just to the oath……………………………………………14
        C.         Section 141.034 does not apply……………………………………..16
                   1.    Sect. 141.034(b) expressly excludes candidate’s eligibility from
                         its time limits…………………………………………………16
                   2.    The focus of Sect. 141.034 is different from this case…………18
                   3.    The District Court Judgment avoids an unreasonable and unjust
                         result………………………………………………………….19
                   4.    The “automatically resigns” cases often involve a longer time
                         frame before first occupying the two offices…………………21
Appellee’s Issue No. 2:
        THE DISTRICT COURT CORRECTLY ISSUED THE PERMANENT
        INJUNCTION……………………………………………………………..22



Appellee’s Brief                                                                        3
Appellee’s Issue No. 3:
        THE DISTRICT COURT CORRECTLY AWARDED ATTORNEY’S FEES
        TO BENSON……………………………………………………………….23
Conclusion and Prayer…………………………………………………………….23
Certificate of Compliance…………………………………………………………25
Certificate of Service………………………………………………………………25
Appendix……………………………………………………………………….....26
        First Amended Final Judgment with Permanent Injunction (C.R.491)…Tab 1
        Findings of Fact and Conclusions of Law (Supp. C.R.4)……………….Tab 2
        Tex. Elec. Code Sect. 141.033…………………………………………..Tab 3
        Tex. Elec. Code Sect. 141.034…………………………………………..Tab 4
        Tex. Elec. Code Sect. 162.015…………………………………………..Tab 5




Appellee’s Brief                                                             4
                      INDEX OF AUTHORITIES
CASE LAW                                                   PAGE
In re Bell,
91 S.W.3d 784 (Tex. 2002)…………..…………………………………………...19

In re Crenshaw,
207 WL 1292013 (Tex. App—Dallas April 7th, 2017 no pet.)……………………18

In re Ducato,
66 S.W.3d 558 (Tex. App.—Fort Worth 2002, no pet)………………………...…19

Law v. Johnson,
826 S.W.2d 794 (Tex. App.—Houston [14th Dist.] 1992, no writ)………………18

Pruitt v. Glenrose Indep. Sch. Dist.,
84 S.W.2d 1004 (Tex. 1935)……………………………………………………...21

State v. Hodges,
92 S.W.3d 489 (Tex. 2002)……………………………………………………….17

Tovar v. Bd. of Trustees of Somerset Indep. Sch. Dist.,
994 S.W.2d 756 (Tex. App.—Corpus Christi 1999, pet. denied)………………...20

Wallace v. Howell,
707 S.W.2d 876 (Tex. 1986)…………………………………………………13, 14

STATUTES AND CODES
Tex. Gov’t Code Sect. 37.009…………………………………………………….23
Tex. Gov’t Code Sect. 311.021…………………………………………………...19
Tex. Elec. Code Sect. 1.003(a)……………………………………………………19
Tex. Elec. Code Sect. 141.032…………………………………………………….17
Tex. Elec. Code Sect. 141.033………………………………...6, 8, 9-17, 20, 22, 23
Tex. Elec. Code Sect. 141.034…………………………………….11, 12, 16, 18, 23
Tex. Elec. Code Sect. 162.015……………………………………………………17
Tex. Elec. Code Sect. 201.025……………………………………………11, 21, 23
Appellee’s Brief                                                     5
                             STATEMENT OF THE CASE
        This Appeal concerns the effort by the City of Forest Hill to deprive Michielle

Benson of her position on the City of Forest Hill City Council after she won a

majority vote on the same date to both the City Council and the City of Forest Hill

Library Board of Trustees.

        She filed her application to be on the ballot for City Council first, and then

afterward filed her application to be on the ballot for the Library Board. Later, she

took the oath of office first for City Council, and then the oath for Library Board.

        The City requested an Opinion from the Attorney General, who opined that

the two offices were incompatible, and that Mrs. Benson “effectively resigned” from

the City Council when she later took the oath of office for Library Board on the same

day. The Attorney General Opinion did not address Election Code Section 141.033,

which provides that (a) a candidate cannot file an application to be on the same ballot

for two separate offices unless permitted by law, and (b) if she does, any application

filed after the first one is invalid.

        Promptly acting on the Attorney General’s Opinion, the City Council declared

that Dr. Benson had resigned, and appointed as her replacement Brigette Mathis, the

prior incumbent that Benson defeated for City Council. The District Court held the

City Council’s actions null and void under Section 141.033 and permanently



Appellee’s Brief                                                                       6
enjoined the City from interfering with her position on the City Council during the

remainder of the term for which she was elected. (Supp. C.R. 9-11).

Course of proceedings:

        Appellant’s Brief correctly states the Court’s proceedings.

District Court’s disposition:

        Following a bench trial held on April 10th, 2017, the District Court issued its

Final Declaratory Judgment with Permanent Injunction on June 16 th, 2017. On

September 6th, 2017, the District Court issued its First Amended Final Judgment

with Permanent Injunction from which Appellants appeal. That Judgment declared

that the City’s declaration that Benson had effectively resigned was null and void,

that the appointment of Mathis was null and void, and the City was permanently

enjoined from interfering in any way with Benson’s City Council position. The

District Court also awarded Benson attorney’s fees. (Supp. C.R. 9-11).




              STATEMENT OF ISSUES PRESENTED FOR REVIEW

Issue 1:           The District Court correctly granted judgment in favor of Benson

because the retroactive effect of the Attorney General’s Opinion on conflicting

offices must be applied to Benson’s second application for a place on the ballot, not


Appellee’s Brief                                                                     7
just to her second oath of office. (C.R. 496; Supp. C.R. 9-11). Tex. Elec. Code Sec.

141.033 governs this case. Benson first filed for City Council. When, after that, she

filed for Library Board, her second application was null and void; she was never

properly elected to the Library Board for a conflict to exist.

Issue 2:           The District Court correctly issued the Permanent Injunction because

the City erred in declaring that Benson effectively vacated her City Council position

when, right after taking the oath of office for City Council, she took the oath of office

for Library Board, to which she was never legally elected under Sect. 141.033.

Issue 3:           The District Court correctly awarded attorney’s fees to Benson, the

amount of which the City does not challenge.




                     STATEMENT OF FACTS AND BACKGROUND

        Note: Appellee Benson offers the following statements of facts as more

complete than those stated by Appellant City. Record references are to the

Supplemental Clerk’s Record (Supp. C.R.) which Benson requested to be filed.

Appellants’ record references are to one of their own briefs, not to the District

Court’s Findings of Fact (although Appellants attached those findings as Tab 4 in

their Appendix).



Appellee’s Brief                                                                        8
        1.         On January 22nd, 2016, Benson submitted applications for two different

positions on the same ballot: first an application for the Forest Hill City Council,

Place 3 position, and then a second application for Trustee of the City of Forest Hill

Library Board. (Supp. C.R. 5).

        2.         The City did not attempt to prohibit Benson from running for both

offices, even though it knew of Sec. 141.033 Tex. Elec. Code. The reason for her

being allowed to be on the ballot for both offices was because there was no statute,

court, or Attorney General opinion that determined the two offices were in conflict

(Supp. C.R. 5).

        3.         Benson won a majority vote for both offices. On May 17th, 2016,

Benson took the oath of office for City Council. She then took the oath as Trustee

for the Library Board that same day. (Supp. C.R. 6). Benson served in both offices

until January 6th, 2017 (Supp. C.R. 6).

        4.         At its June 7th, 2016, meeting the City Council expressed concern

whether Benson could serve both offices without someone calling into question her

votes cast in either one. Benson herself wanted to know and made the City Council

Motion to seek an Attorney General’s opinion (Supp. C.R. 6).

        5.         The Forest Hill City Attorney composed an opinion request letter to the

Attorney General and provided it to the Tarrant County District Attorney for the


Appellee’s Brief                                                                        9
District Attorney to forward to the Attorney General. The City Attorney did not

mention Tex. Elec. Code Sec. 141.033 in his draft letter to be sent to the Attorney

General (Supp. C.R. 6, 7), even though he knew about it (Supp. C.R. 5).

        6.         On January 3rd, 2017, the Attorney General’s office issued its Opinion

in which it concluded that Benson’s dual roles were incompatible and she was

deemed to have “effectively resigned” her position on the City Council when she

later took the oath of office for Library Board Trustee after taking the oath of office

for City Council. The Opinion did not address Sect. 141.033 or inquire which office

was applied for first (Supp. C.R. 7).

        7.         The City Council immediately acted. It scheduled a special meeting for

three days later, on January 6th, to consider implementing the Attorney General’s

Opinion (Supp. C.R. 7).

        8.         Dr. Benson requested that the City Council meeting to discuss her two

offices be postponed until she could return from New York City to attend the

meeting after January 6th. The Council ignored that, met on January 6th, 2017, voted

to accept Benson’s deemed resignation from the Council, and appointed Mathis to

fill her place until a special election on May 6th, 2017 (which was not held because

of the District Court’s Temporary Injunction) (Supp. C.R. 7).




Appellee’s Brief                                                                       10
         9.        In addition to its Final Judgment with Permanent Injunction, the

District Court granted plaintiff’s reasonable, necessary, and just and equitable

attorney’s fees (Supp. C.R. 8-9). Appellant does not challenge the amounts, but only

asks for District Court reconsideration if this Court reverses. (Appellants’ Brief

p.22).

                            SUMMARY OF THE ARGUMENT

         1.        The District Court correctly ruled that the Attorney General’s

determination of incompatibility in the two offices related back to the timing Benson

filed her second application, not just to the later time she took her second oath of

office, both for Library Board. The common law cases of incompatibility, and Tex.

Elec. Code Sect. 201.025 relied on by the city are irrelevant, because under Sec.

141.033(b) Benson was never legally elected to the second office for which she

applied to be on the ballot, upon giving effect to the Attorney General’s Opinion on

conflicting offices. (All Section citations are to the Tex. Elec. Code unless otherwise

stated). There was no meaning on Benson’s taking the second oath; it was to an

office she was prohibited from seeking.

         2.        The City erroneously argues that there should have been “a challenge”

to Benson’s application before early voting started under Elec. Code Sec. 141.034.

That is wrong because section 141.034(b) expressly states it does not apply to a


Appellee’s Brief                                                                      11
candidate’s eligibility. By applying for City Council, Benson became ineligible to

apply for Library Board on the same ballot. Sect. 141.034 contemplates one specific

candidate to challenge the ballot application by another specific candidate to keep a

prospective opponent off the ballot, or by a candidate opposing an election official’s

decision to keep her off the ballot. That is a totally different situation from the facts

in this case. The City does not say who should have challenged Benson’s second

application. A challenge by another person was unnecessary. Sec. 141.033 (b) was

an automatic disqualification by statute declaring her second application, for Library

Board, invalid once the two offices were deemed incompatible.




                        ARGUMENT AND AUTHORITIES

Issue No.1: In reply to Appellants’ Issue No. 1, the District Court did not err, but

correctly granted Judgment in favor of Benson, applying Election Code Section

141.033.

        A. Sect. 141.033 is mandatory and governs this case.

        The determining issue in this case is when to apply the Attorney General’s

Opinion that the offices of City Council and Library Board are incompatible.

        Section 141.033 states (in part):



Appellee’s Brief                                                                      12
                   (a) A candidate may not file applications for a place on the
                   ballot for two or more offices that:
                   (1) are not permitted by law to be held by the same person;
                   and
                   (2) are to be voted on at one or more elections held on the
                   same day.
                   (b) If a person files more than one application for a place
                   on a ballot in violation of this section, each application
                   filed subsequent to the first one filed is invalid.



        Benson first filed her application to be on the ballot for City Council (Supp.

C.R.5). Benson then filed her second application, for Library Board. That second

application is the proper target of the A.G. Opinion, not her second oath, for Library

Board.

        The self-enacting, automatic invalidating effect of a second application was

enforced early after Section 141.033 was enacted in Wallace v. Howell, 707 S.W.2d

876, 877 (Tex. 1986). There, Respondent Howell filed an application as a candidate

for associate justice, Texas Supreme Court, Place 1. Two days later, January 23 rd,

1986, Howell attempted to switch his candidacy from Place 1 to Place 3 to run

against Relator Wallace. Howell did so by accompanying his second filing, for Place

3, with a letter stating that conditioned on the Republican Party Chairman’s

accepting his second filing, for Place 3, he conditionally withdrew as a candidate for




Appellee’s Brief                                                                   13
Place 1, and based on that same condition, requested “conditionally that my name

be omitted from the ballot as a candidate for Place 1.” Wallace, 707 S.W.2d at 877.

        The Texas Supreme Court held that Howell’s second application, for Place 3,

was invalid upon filing: “This result is mandated by the plain language of Section

141.033 and this Court’s previous decisions that statutory requirements concerning

candidacy for political office are mandatory and are to be strictly enforced.”

Wallace, 707 S.W.2d at 877. The timing of the Supreme Court’s holding does not

affect the mandatory effect it gives to Sect. 141.033.

        B. Retroactive incompatibility applies also to the second application filing,

not just to the oath.

        Appellants’ Brief (p. 20) misleadingly states: “Taking into consideration all

of the facts in this case, the Attorney General Opinion held that since both positions

held by Benson created conflicting loyalties, Benson could not hold both positions.”

Appellants’ statement is both misleading and wrong because the Attorney General

did not take into consideration all of the facts in this case. His Opinion says nothing

about Sec. 141.033. His Opinion says nothing about the necessity to inquire into

whether Benson filed first or second to be on the ballot for Library Board.

        The City’s position is apparently that the Attorney General’s post-election and

post-oath incompatibility Opinion floated backwards, retroactively only to the time


Appellee’s Brief                                                                    14
when Benson took the second oath of office. But that retroactive effect did not stop

there. It kept going and impacted what happened earlier: her second application,

which by the express terms of Sec. 141.033(b) was invalid.

        The Attorney General’s Opinion held that the Library Board Trustee was not

an office “permitted by law” under Sec. 141.033(a) to be held by a City Council

member. Unavoidably, that meant that her second filed application, for Library

Board, was invalid 141.033(b). Benson was never elected to the Library Board

legally; her oath of office for Library Board was irrelevant. The Attorney General,

having not been informed of the crucial facts in this case, and ignoring Sect. 141.033,

effectively ruled that Benson’s second oath meant she was holding an office to which

Sect. 141.033(b) mandates she was not eligible to be elected.

        That Opinion is correct as to incompatibility but faulty because the Attorney

General did not address Sect. 141.033. Appellants’ acknowledge retroactive

application of the Attorney General’s Opinion, but to the wrong event. Retroactivity

hit Benson’s second filing squarely; invalidating it, and rendering irrelevant her

subsequent oath for Library Board.




Appellee’s Brief                                                                    15
          C. Sect. 141.034 does not apply.

          Appellants choose to ignore Sect. 141.033, and instead rely on Sect. 141.034.

That section states what the City says it does (Appellants’ Brief p. 15), but also states

something else important that the City chose to ignore and did not cite ((b) below):

                   (a) an application for a place on the ballot may not be
                   challenged for compliance with the applicable
                   requirements as to form, content and procedure after the
                   day before any ballot to be voted on by early mail is mailed
                   to an address in the authorities’ jurisdiction for the election
                   for which the application is made.
                   (b) This section does not apply to a determination of a
                   candidate’s eligibility. [Emph. added.]



          Section 141.034 does not apply to this case, for two reasons.

          1. Sect. 141.034(b) expressly excludes candidate’s eligibility from its time

limits.

          Subparagraph (b), expressly states the entire Sect. 141.034 does not apply to

a determination of a candidate’s eligibility. The first inquiry in this case is: Was

Benson eligible to be on the ballot for election to the second office for which she

applied to be placed on the same ballot? The answer is no.

          A valid application is required to be on the ballot. The applicable authority

(City Secretary in this case; C.R.R., Vol. 2, p.15) “with whom the application is filed


Appellee’s Brief                                                                      16
shall review the application to determine whether it complies to the requirements as

to form, content, and procedure that it must satisfy for the candidate’s name to be

placed on the ballot.” Elec. Code Sect. 141.032. (Emph. added).

            For Benson to be eligible to be elected to the office of Trustee of the

Library Board, she must have timely filed a valid application for a place on the ballot.

Filing the second application was not valid because it was second; only the first one

was valid under Sect. 141.033 (b).

            Ineligibility is created in the Election Code to make ineligible a candidate

because of prior conduct. For example, Sect. 162.015 precludes a primary candidate

from running in the general election from the same office that she lost or as an

independent, or write-in candidate or candidate for any other political party. State v.

Hodges, 92 S.W.3d 489, 494-495 (Tex. 2002).

            Upon retroactive determination of incompatibility of the two offices, Sect.

141.033 (b) automatically nullified Benson’s application to be on the ballot for

Library Board Trustee when it was filed after she filed first for City Council. Benson

became ineligible for the Library Board.




Appellee’s Brief                                                                     17
            2. The focus of Sect. 141.034 is different from this case.

            The second reason that relying on Sect. 141.034 is erroneous is that its

ballot access challenge inherently presupposes two people in opposition seeking the

same office, or contesting access to it, not present in this case.

            Two people, with opposing positions, are needed to challenge an

 application to be on the ballot under the concepts in the Elec. Code Sec. 141.034.

 One candidate can timely challenge an opponent’s application to avoid competition.

 Appellants’ cited case, Law v. Johnson, 826 S.W.2d 794 (Tex. App.—Houston

 [14th Dist.] 1992, no writ) is typical. (Appellants’ Brief p.15).

            Also, often a candidate sues an election official to add his or her name to

 the ballot, not to remove somebody else’s, but to compete against that someone. In

 re Crenshaw, 2007 WL 1292013 (Tex. App.—Dallas April 7th, 2017 no pet.)

 (mem. op.) is typical of that. (Appellants’ Brief p.16).

            Those types of cases are irrelevant to Dr. Benson’s case. Appellants

 desperately argue, in effect, that someone should have challenged the City Secretary

 to keep Benson off the ballot for Library Board, and that someone is herself. No

 authority exist supporting Appellants’ bizarre theory. The Texas Election Code

 challenge procedures certainly do not. Appellants’ theory seeks a prohibited

 unreasonable or unjust result.


Appellee’s Brief                                                                     18
            3. The District Court Judgment avoids unreasonable or unjust result.

            This Court has noted that “We are mindful that statutory requirements

 concerning candidacy for public office are mandatory and must be strictly construed

 to ensure compliance….Nevertheless, we cannot construe the statutory

 requirements so strictly as to lead to unreasonable or unjust results.” In re Ducato,

 66 S.W.3d 558, 561 (Tex. App.—Fort Worth 2002, no pet). See In re Bell, 91

 S.W.3d 784 (Tex. 2002). “Ducato also stresses the Code Construction Act’s

 instruction that the legislature is presumed to have intended a ‘just and reasonable’

 result in enacting statutes.” Ducato, 66 S.W.3d at 560, citing Elec. Code Sect.

 1.003(a) concerning Tex. Gov’t Code Sect. 311.021. Equally unjust and

 unreasonable is the City’s argument that the arc of the Attorney General’s Opinion

 reached backwards in time only to the time of taking the second oath of office, not

 to the time of filing the second, invalid, application weeks before.

        Avoiding being unreasonable or unjust is not a big concern of the City in this

dispute. If the City had been remotely interested in either justice or reasonableness,

it would not have rushed to oust Benson from office only three days after it received

the Attorney General’s Opinion, even if she had been in town. The City showed no

interest in avoiding being unreasonable or unjust when it held its ouster meeting on

only three days’ notice, knowing Dr. Benson was in New York, and in ignoring her

request for more time so she could attend the meeting. If the City had been interested
Appellee’s Brief                                                                    19
in anything approaching being just and reasonable, it would have given Benson

reasonable time to hire her own attorney and call the Council’s attention to the fact

that she filed first for City Council. Her attorney would have also possibly been able

to insist that the City Attorney incorporate that first-filing fact and the existence of

Sect. 141.033 in his letter request for an Attorney General’s opinion.

        And, if the City really were interested in a just and reasonable outcome, it at

least would have done what the school board did in Tovar v. Bd. of Trustees of

Somerset Indep. Sch. Dist., 994 S.W.2d 756, 759 (Tex. App.—Corpus Christi 1999,

pet. denied). There, a question arose whether a School Board member had vacated

his office by failing to maintain his residence in the district he represented. State law

provided that a Trustee vacates the office if the Trustee ceases to reside in the district

in which the Trustee represents. Tovar, 994 S.W.2d at 759.

        Instead of immediately acting on that statute and expelling Tovar from his

office (which the City in this case would have done), the School District sought a

declaratory judgment that Tovar had vacated his office. The Corpus Christi court

held that declaratory judgment was proper, (and that quo warranto was not required).

        The District Court properly granted declaratory judgment for Benson in this

case.




Appellee’s Brief                                                                       20
        The City did none of these things; its entire theory depends on unjust and

unreasonable should prevail.

        4. The “automatically resigns” cases often involve a higher second office and

a longer time frame between first occupying the two offices.

        In connection with Sect. 201.025, Appellants rely on Pruitt v. Glenrose Indep.

Sch. Dist., 84 S.W.2d 1004, 1006 (Tex. 1935). That, and other similar cases, rule

that when a current office holder later takes an oath of office for a different office,

which are not compatible, the person resigns from the first office. (Appellants’ Brief

p. 18).

        In Pruitt, on October 23rd 1928, Kugle was appointed by the Trustees of the

Glenrose Independent School District as collector of taxes for the district. Two

weeks later, on Nov. 5th, 1928, he was elected sheriff and tax collector for all of

Sumervello County, which contains Glenrose. On January 1st, 1929, Kugle took the

oath of office as county sheriff and tax collector, and assumed those duties. The

Court held he automatically resigned from the appointed office of school district tax

collector when he later took the oath of office for sheriff and tax collector for the

entire county. 84 S.W.2d at 49. Kugle’s second office, elected, was more important

than his prior one. He took the oath of office for the second one over two months

after he was appointed school district tax collector.


Appellee’s Brief                                                                     21
        Those facts are completely different from Benson’s case. Appellants’ theory

seeks an unreasonable and unjust result. Benson could not have possibly intended to

resign from City Council by later in the day taking the oath of office for Library

Board which she considered a much less important office. Benson wanted to be on

the City Council in honor of her father because he had served on it, and had been

mayor pro tem. She did not even put out any yard signs for Library Board (C.R.R.,

Vol. 2, pp 19, 24; C.R.R., Vol. 3, p. 33).




Issue No. 2: In reply to Appellants’ issue No. 2, the District Court correctly issued

the permanent injunction because that afforded Benson appropriate protection from

the City’s ousting her from office based an Attorney General’s Opinion that did not

mention Sect. 141.033.

        The City argues that the District Court granting the permanent injunction was

wrong because the Court erred in its underlying judgment that the City’s actions in

ousting Benson were null and void. The City is wrong, for the reasons stated above

in response to Appellants’ Issue No. 1. The District Court’s Judgment, including the

Permanent Injunction, were correct and should be affirmed.




Appellee’s Brief                                                                   22
Issue No. 3: In response to Appellants’ issue No. 3, the District Court correctly

awarded attorney’s fees to Benson, the amount of which Appellants do not object.

        The District Court awarded Benson attorney’s fees under the Declaratory

Judgment Act., Tex. Gov’t Code Sect. 37.009. (C.R. 499). Appellant does not

complain amount the amounts, but merely asks that the Court remand to the District

Court for reconsideration if this Court reverses on the merits. Appellee would hate

for that to happen, but if it does, she has no objection to remanding, in fairness to the

District Court, to reconsider attorney’s fees if she wishes.




                           CONCLUSION AND PRAYER

        The District Court correctly applied the Attorney General’s incompatibility

Opinion to Benson’s second application to be on the ballot, not just to her second

oath of office. The District Court also correctly ruled that Election Code Sect.

141.033, which invalidated her second ballot application, governs instead of Sects.

141.034 and 201.025 (C.R. 496; Supp. C.R.9-11). The District Court interpreted the

Election Code in a way to avoid an unjust or unreasonable result, kept Benson in her

City Council position, and should be affirmed.

        Benson respectfully requests the Court to affirm the District Court’s Judgment

in all respects, and grant her any other relief to which she may be entitled.

Appellee’s Brief                                                                      23
        Respectfully submitted this December 21st, 2017.




                                             /s/Harold D. Hammett
                                             HAROLD D. HAMMETT
                                             State Bar No. 08855000
                                             4330 W. Vickery Blvd., Ste 140
                                             Fort Worth, Texas 76107
                                             Telephone: 817-820-3108
                                             Facsimile: 817-882-6955
                                             hammettlaw@att.net
                                             ATTORNEY FOR APPELLEE




Appellee’s Brief                                                              24
                            CERTIFICATE OF COMPLIANCE

      I hereby certify, pursuant to Rule 9.4(i) (3) of the Texas Rules of Appellate
Procedure, that this brief complies with length limitations of Rule 9.4(i) and the
typeface requirements of Rule 9.4(e).
     Exclusive of the contents excluded by Rule 9.4(i) (1), this brief contains 4,537
words as counted by the Word Count function (including textboxes, footnotes, and
endnotes) of Microsoft Word 2013.
        This brief has been prepared in proportionally spaced typeface using:
                   Software:    Microsoft 2013
                   Typeface:    Times New Roman
                   Font Size:   14 point


                                                 /s/Harold D. Hammett
                                                 HAROLD D. HAMMETT




                                CERTIFICATE OF SERVICE

      I hereby certify that a true, correct and complete copy of the foregoing
document was served in accordance with Rule 9.5 of the Texas Rules of Appellate
Procedure on the 21st day of December, 2017, to:

Robert F. Maris
3710 Rawlins Street, Suite 1550
Dallas, Texas 75219

                                                 /s/Harold D. Hammett
                                                 HAROLD D. HAMMETT




Appellee’s Brief                                                                  25
                                   NO.02-17-00346-CV
                                 In the Court of Appeals
                                 Second District of Texas
                                   Fort Worth, Texas


                      City of Forest Hill, Texas, and Brigette Mathis
                                       Appellants,
                                            v.
            Michielle Benson, in her official capacity and individually,
                                        Appellee.


   On Appeal from the 153rd Judicial District Court of Tarrant County, Texas
Cause No.153-290222-17; the Honorable Susan Heygood McCoy Presiding


                                APPELLEE’S APPENDIX


 Contents                                                                  Page

First Amended Final Judgment with Permanent Injunction (C.R.491)………...Tab 1
Findings of Fact and Conclusions of Law (Supp. C.R.4)………………………Tab 2
Tex. Elec. Code Sect. 141.033…………………………………………………Tab 3
Tex. Elec. Code Sect. 141.034…………………………………………………Tab 4
Tex. Elec. Code Sect. 162.015…………………………………………………Tab 5




Appellee’s Appendix                                                            26
APPENDIX TAB "1"
                                                                                             I
                                          153-290222-17


                                      . NO. 153-290222-17

MICHIELLE BENSON,                           §        IN THE DISTRICT COURT
Plaintiff, in her official capacity         §
and individually                            §
                                             §      OF TARRANT COUNTY, TEXAS
v.                                          §
                                            §        153rct JUDICIAL DlSTRICT
City of Forest Hill, Texas                  §
and Brigette Mathis,                        §
Defendants                                  §


      FIRST AMENDED FINAL JUDGMENT WITH PERMANENT INJUNCTION


       This Judgment is substituted for this Court's prior Judgment dated June 16,

2017. On April 10th, 2017, this case was called for Trial. Plaintiff Michielle Benson,

appeared in person and through her attorney, Harold D. Hammett. Defendants City

of Forest Hill, Texas, and Brigette Mathis, and their attorney, Robert F. Maris,

appeared. All parties announced ready for trial.


      The case was tried to the Court on agreed facts. The Court took Judicial Notice

of Section 3.10 and 3.11 of the Charter of the City of Forest Hill, heard the evidence

and arguments of Counsel, and took the case under advisement. The Court

requested and received additional briefs and responses.


      Plaintiff Benson asks the Court under the Texas Declaratory Judgment Act.

Tex. Civ. Prac. and Rem. Code Sec. 37.003 and 37.004(a) to declare whether the

Defendant City had the authority to declare her City Council position vacant, and if


First Amended Final Judgment With Permanent
Injunction                                                                               1



                                                                                    491
not, to clarify her right to be on the City of Forest Hill City Council, Place 3, and

declare the acts of the City Council in replacing her null and void, and for permanent

injunction. Plaintiff also asks for attorney's fees under Sec. 37.009.


       The Court hereby renders judgement for Plaintiff, Michielle Benson.

       The facts are that Dr. Benson filed Applications to be placed on the Ballot for

two offices in February of 2016-Place 3 of the Forest Hill City Council and a place

on the Forest Hill Library Board of Trustees. There is no disagreement at this time

on the facts that the City Council application was filed first, and she was elected to

both positions. Dr. Benson was sworn in to both positions in May 2016, and the

record is undisputed that she took the Oath for the position in City Council first,

before taking the Oath for the position on the Library Board of Trustees.

       Dr. Benson served in both positions, attending meetings of the City Council

from May of 2016 - July of 2016. In July of 2016, an issue was presented to the City

Council regarding whether Dr. Benson could serve in both positions without a

conflict of interest. A vote was taken at the City Hall meeting to request an opinion

of the Attorney General's Office [hereinafter the "AG"J regarding this issue; even Dr.

Benson voted in favor of obtaining the AG's ruling on this matter. The City Attorney

drafted the request letter for the District Attorney to send to the AG. The City

Attorney's letter did not state anything about the sequence of filing for two offices.




First Amended Final Judgment With Permanent
Injunction                                                                               2



                                                                                        492
      On January 3, 2017, the AG issued an opinion letter finding that Dr. Benson

could not continue in both positions given the apparent conflict of interest (one

issue raised was the fact that both entities compete for tax dollars from the City of

Forest Hill). The AG opined that once Dr. Benson was sworn into the second position

(the Library Board), she implicitly "resigned" from the first office (City Council).

      On the same day it received the letter, January 3rd, the City Council issued

notice for a Special meeting on January 6th to "discuss" the AG's letter ruling. Dr.

Benson was out of town in New York, and upon learning of the meeting, sent an e-

mail to each of the members of the City Council, and the Mayor, asking that the

meeting be postponed until she could be present. Despite this request, the meeting

took place without Dr. Benson, and the City Council voted to replace her with her

former opponent in the race for Place 3, Brigette Mathis. This suit for declaratory

and injunctive relief was filed January 31, 2017.

      The Plaintiff and the Defense each rely on separate provisions of the Texas

Election.Code. Plaintiff relies upon Election Code Section 141.033 titled Filing

Applications for More than One Office Prohibited. Specifically it states "(a) A

candidate may not file applications for a place on the ballot for two or more offices

that are not permitted by law to be held by the same person. (b) If a person files

more than one application for a place on a ballot in violation of this section, each

application fi1ed subsequent to the first one filed is invalid." V.T.C.A. Election Code

Section 141.033 (a) and (b). Thus Dr. Benson's claim that she filed for the Forest Hill
First Amended Final Judgment With Permanent
Injunction                                                                                3



                                                                                       493
City Council position first, means that her election to any other office that she later

filed to run for was also invalidated. Further, since she then would have held ONLY

the City Council position, as her later application to the Library Board was

invalidated, there is no conflict of interest, and the opinion of the AG does not apply

to her circumstances.


       Defendants' rely upon a different section of the same Election Code. They cite

to Election Code Section 210.025 Acceptance of Another Office. That provision states

"If an officer accepts another office and the two offices may not lawfully be held

simultaneously, a vacancy in the first office occurs on the date the person qualifies

for the other office." V.T.C.A. Election Code Section 201.025. Thus, Defendants'

reasoning (based upon the AG's reasoning) is that once Plaintiff took the oath of

office for the Library Board position, it created a vacancy for Place 3 on the City

Council. Thus, under their reasoning, once Plaintiff took the oath of office for the

Library Board position, the City Council Place 3 position was vacant, and in need of a

replacement.


      Defendants also argue that the time window to challenge Plaintiffs candidacy

for either position had expired (following the printing of the ballot), and because no

one challenged her application during the allowable window, it is too late to

consider the incompatibility of Plaintiffs dueling applications (thus, the

incompatibility can only be considered with respect to the swearing in time period,

not the application period). In support of this argument, Defendant cites Tex. Elec.
First Amended Final Judgment With Permanent
Injunction                                                                                4




                                                                                       494
Code Sect. 141.034 and cases where the court reasoned that a challenger's challenge

came too late, because the ballots had already been printed.


       The cases cited by the Defendant involve completely different scenarios,

where challenges were made (on time or too late) by a challenger for the same

office. In those cases the courts looked at whether the challenger/opponent made

their challenge in the allowable window (essential1y, before the ballots were

printed). Here, there was a different kind of challenge, which was not made until

after the election, after Plaintiff was sworn-in and served in the City Council

position, and after the AG issued its opinion letter. Both Plaintiff and the City Council

asked for the AG's opinion letter, and when it arrived, Plaintiff was replaced by the

rest of the City Council in a vote that occurred while she was not present. This is not

the type of "challenge" scenario discussed in Defendants' cases.

       In this case no one knew that Plaintiff could not hold both offices when she

filed; therefore no one knew that they could challenge her right to appear on the

ballot for both offices.

       In support of Permanent Injunction, Plaintiff argues that the Defendant never

asked the AG to issue an opinion regarding how to handle the conflict at the point of

the Plaintiff filing for both positions, they only asked the AG to consider the conflict

at the point where Plaintiff was sworn into the second office.




First Amended Final Judgment With Permanent
Injunction                                                                                 5



                                                                                     495
       The issues involved in this case center around the issue of, once she was

made aware of the incompatibility of holding two positions, which office Plaintiff

should continue to hold. The question comes down to whether Plaintiff should hold

the office she first applied for (City Council) or the one she was last sworn into

(Library Board). The Attorney General issued a letter finding incompatibility, and

opined that once Plaintiff was sworn into the second office, she gave up the first. The

Court notes that the AG had not considered whether the incompatibility existed at

the time she made her applications, and the Court concludes that the incompatibility

existed at the time she made her applications (as well as when she was later sworn

in), and given that, she should keep the office she first applied for (City Council)

because her second application was void due to incompatibility.


       Election Code Section 141.033 cannot be ignored. The Legislature intended

Sect. 141.033 to be effective with the intent to achieve a just and reasonable result.

Tex. Govt. Code Sect. 311.021(2,3). The Attorney General's opinion related back to

the time of filing the ballot place applications, not just to the Oaths of Office. The

issue of the timing of the Application filings must be considered before the issue of

Oaths of Office can be considered. The AG opined only that there was a conflict in

holding both offices. This Court agrees. Once this incompatibility was determined,

Section 141.033(b) automatically became applicable and controlling. Plaintiff was

not legally placed on the ballot for both positions, but only for City Council.

Therefore, the City Council position was the only office for which Plaintiff was
First Amended Final Judgment With Permanent
Injunction                                                                                6



                                                                                         496
properly filed and elected to serve. With Plaintiff only being properly elected to one

office, there is no conflict and no incompatibility.


       Accordingly, in this matter of first impression, the Court orders and decrees

as follows:


       1. The action by the City Council of the Defendant City of Forest Hill, Texas on

January 6th, 2017, declaring that Plaintiff Benson "effectively resigned" from the City

was and is null and void, ab initio;


       2. The action by the City Council and Defendant City of Forest Hill on January

6th, 2017 in appointing Defendant Brigette Mathis as successor to Plaintiff Benson's

Council Position, Place 3, was and is null and void, ab initio;


       3. Defendant, the City of Forest Hill, Texas, is permanently enjoined and

prohibited from depriving or interfering in any way with Plaintiff Michie lie Benson

in exclusively occupying the office of Member of the City Council of Forest Hill, Place

3, through to expiration of her elected term in May, 2018, including but not limited

to impairing any privileges and rights of City Council Members, such as receiving

messages that all City Council members receive from the City Manager, including

notice of City Council meeting, discussing and voting on matters before the City

Council, having possession and use of her cell phone, iPad and any other supplies

provided by the City of Forest Hill to its City Council Member, and receiving funding



First Amended Final Judgment With Permanent
Injunction                                                                              7



                                                                                   497
for training sessions. This injunction applies to Defendant City, its officers, officials,

employees and agents, and any person acting in concert with any of them.




                                   ATTORNEY'S FEES


       Plaintiff has requested the Court order the Defendant City to pay her

Attorney's fees, which request the Court hereby grants. The parties agreed to submit

attorney's fees upon affidavits. The Court received an affidavit from Plaintiffs

counsel and Plaintiff but none from Defendants' counsel on attorney's fees.

      The Court finds from Plaintiff's attorney's affidavit that the following fees are

and were reasonable and necessary. The Court also finds that such fees are

equitable and just in light of the following facts: (1) in drafting the proposed letter

for the District Attorney to send to the AG, Defendant's City Attorney did not

mention anything about the sequence or filing for the two offices, although he was

aware of a Texas Election Code 141.033 potential problem, as Defendants' counsel

acknowledged in his opening statement to the Court; (2) the Defendant City Council

unfairly acted upon only three days' notice to remove Plaintiff Benson from her

elected City Council position; and (3) did so while she was out of state and had

requested more time to address the issue.




First Amended Final Judgment With Permanent
Injunction                                                                                   8



                                                                                       498
       Accordingly, Judgment is also rendered that Plaintiff recover from the City of

Forest Hill, Texas, the following attorney's fees, which the Court rules are

reasonable, necessary, equitable and just:




       $ 33. 341.00                            For representation through trial and
                                               completion of proceedings in the
                                               District Court.


      $ 2.000.00                               Forpos~trialproceedingsinthe
                                               District Court.


      $    12.950.00                           For representation through appeal to
                                               the Court of Appeals, if successful.


      $    5.000.00                            For representation at the petition for
                                               review stage in the Supreme Court of
                                               Texas, if successful.




      $   13.000.00                           For representation at the merits
                                              briefing stage in the Supreme Court of
                                              Texas, if successful.


      $    6.000.00                            For representation through oral
                                              argument and the completion of
                                              proceedings in the Supreme Court of
                                              Texas, if successful.




First Amended Final Judgment With Permanent
Injunction                                                                              9



                                                                                  499
       4. Next, the Court orders the District Clerk to properly refund the cash

deposit in lieu of temporary injunction bond of $1,500.00 filed by Plaintiffs

attorney, Harold D. Hammett.



       5. Cost of Court are assessed against Defendants.

       This judgment disposes of all claims and parties, and is appealable.



       Signed this   {p~ dayo~017.



                                              Susan Heyg      cCoy,
                                              Judge Presiding


Approved as to form and Content:

/sf Harold D. Hammett
HAROLD D. HAMMETT
ATTORNEY FOR PLAINTIFF

Approved as to form:

/s/Robert F. Maris
ROBERT F. MARIS
ATTORNEY FOR DEFENDANTS
By Harold D. Hammett, with permission




First Amended Final Judgment With Permanent
Injunction                                                                         10



                                                                                  500
APPENDIX TAB "2"
                                             lST SUPPLEMENTAL                                      FILED IN
                                              CLERK'S RECORD                                 2nd COURT OF APPEALS
                                                                                               FORT WORTH, TEXAS
                                              Volume 1          of 1                         12/11/2017 2:50:25 PM
                                                                                                 DEBRA SPISAK
                                                                                                    Clerk
                                Trial Court Cause No. 153-290222-17
                                Appellate Cause No.02-17-00346-CV

                                         In the 153rd District Court
                                      of Tarrant County, Texas
                                  Hon. Susan McCoy,Presiding Judge


                                MICHIELLE BENSON, PLTF, IN HER
                                  OFFICIAL CAPACITY AND INDV.

                                                     vs.
                                       CITY OF FOREST HILL, TEXAS,
                                                  ET AL



                                           Appealed to the Court of Appeals
                               for the 2nd   Supreme Judicial District of Texas
                                             at Fort worth          , Texas



                             APPEARING FOR THE APPELLANT

                             HAMMETT, HAROLD D
                             4330 W VICKERY BLVD STE 140

                             FORT WORTH                                                     TX 76107-
                             Phone:       (817) 820-3108
                             Fax . . :    (817)   882-6955
                             Email Address: HAMMETTLAW@ATT.NET
                             SBOT.: OB855000TX
                             Appearing for CITY OF FOREST HILL, ET AL, Appellant




Delive red to the court of Appeals for t he 2nd   Supreme              (Court of Appeals)
Judicial District of Texas at Port Worth             , Texas,      cause No .
on this date of December   11, 2017,                               Filed in the Court of Appeals for the 2nd   Supreme Judicial
                                                                   District of Texas, at Fort Worth            , Texas, this
Thomas A. Wilder, District Clerk                                   _ _ _ _ day of - - - - - - - - - - - -
Tarrant County, Fort worth, Texas                                  - - -- - -- - - - - - - - - - - - - - - · Clerk

      C1M@ . .
CONNIE WILLIAMS
                        ·vv ill\.cvvwo                             By - - - - - - - - - - - - - - - -- - - - ' Deputy




Deputy District Clerk

                                                                                                                   1
,'T




                                      NO. 153-290222-17

MICHIELLE BENSON,                          §      IN THE DISTRICT COURT
Plaintiff, in her official capacity        §
and individually                           §
                                           §      OF TARRANT COUNTY, TEXAS
v.                                         §
                                           §      1S3rd JUDICIAL DISTRlCT
City of Forest Hill, Texas                 §
and Brigette Mathis,                       §
Defendants                                 §

                          .,.
                  FINDJPNGS OF FACTS AND CONCLUSIONS OF LAW


       The court makes the following Findings of Facts and Conclusions of Law:


                                      FINDINGS OF FACT

       1. This case was tried on Agreed Facts (Findings nos. 2-21 following).


       2. The City of Forest Hill is a duly organized municipality located in Tarrant

County, Texas.


       3. The City's Charter requires that its City Council be composed of seven

persons; a mayor and six council persons. To qualify to serve on the City Council, a

person must be at least 21 years old, a resident of the City, be registered to vote and

be current on all financial obligations to the City.

       4. Brigette Mathis served as Council person, place 3 and was elected to that

position on May 7, 2014. Ms. Mathis' term was due to expire on May 7, 2016. Ms.

Mathis was running for reelection.


Findings of Fact and Conclusions of Law                                                 1
                                                       E·MAILED    .
                                                       :itM±i-~~~                         4
•·'




       5. On January 22, 2016, Michielle Benson first applied to run for Forest Hill

City Council, place 3 against Ms. Mathis.


       6. After that, Dr. Benson also applied to run for the City Library Board of

Trustees. This is an elective office, her second application.


       7. Both of the City Council and the Library Board elections were to occur on

May 7, 2016.


       8. The Forest Hill City Council and the Library Board derive their respective

authorities in the same geographic area; the City limits of Forest Hill. Both entities

are also entitled to receive sales tax revenues generated within the city limits of

Forest Hill.


       9. Neither the City Council nor the Board of Trustee jobs are a paid position.

       10. At the tiffle of filiRg the applications but befoi e acceptance of them,   efe
City Secretary told Di. Benson that her dual apphcattons couJd be a pi oblem:_r--


       11. No one at the city acted to prohibit Dr. Benson from running for the two

positions and her name appeared as a candidate for both positions at the May 7th,

2016 municipal election in Forest Hill. The city knew of Sect. 141.033, Texas

Election Code. The reason Dr. Benson was allowed to apply for two different offices

was because no statutes, court nor the Attorney General had determined that the

two offices at issue were in conflict.



Findings of Fact and Conclusions of Law                                                  2



                                                                                            5
       12. Dr. Benson was elected as a council person and as a trustee of the Library

Board at the election.


       13. On May 17, 2016, Dr. Benson took the oath of office for both positions; she

was first sworn in as a council person and, second, as a trustee.

       14. After May 17, 2016, Dr. Benson actively served as both a Council person

and as a trustee of the Library Board.

       15. At the June 7, 2016 Forest Hill City Council meeting, the Council discussed

Dr. Benson's dual elective roles. The Council expressed concerns that Dr. Bensons'

two positions could be illegal and could call into question her votes on either the

City Council or the Library Board of Trustees. At this Council meeting, Dr. Benson

moved that the City seek an Attorney General's opinions on the propriety of Dr.

Benson serving on the council and the board simultaneously. Dr. Benson's motion

was adopted unanimously.

       16. The Forest Hill City Attorney, Warren Spencer, composed a letter to the

Attorney General and provided it to the Tarrant County District Attorney's Office

and the DA's office forwarded the inquiry to the Attorney General. In Texas,

municipalities cannot make requests for opinions to the Attorney General, but

district attorneys can request an opinion.

       17. Dr. Benson continued to serve on the City Council and the Board of

Trustees until January 2017.

Findings of Fact and Conclusions of Law                                               3



                                                                                         6
"


       18. On January 3, 2017, the Attorney General's office issued its opinion on the

legality of Dr. Benson holding two elective offices. In its opinion, the Attorney

General concluded that Dr. Benson's dual roles were illegal and that she is deemed

to have resigned her position on the City Council on May 17, 2016 when she took

her second oath as Library Board Trustee.

       19. The City Council immediately acted. A special City Council meeting was

scheduled for January 6, 2016 to consider implementing the dictates of the Attorney

General Opinion.


       20. Dr. Benson was in New York City on January 3, 2017 and she would not be

able to return to Forest hill for the special council meeting on January 6, 2017. Dr.

Benson requested that a meeting on the issues presented by her dual roles be

delegated until she could return from New York City.

       21. The Forest Hill City Council met as scheduled on January 6, 2017 and

agreed to accept Dr. Benson's deemed resignation from the Council. Bridgette

Mathis was appointed to temporarily fill the place 3 position until a special election

could be held on May 6, 2017.


       22. The Forest Hill City attorney did not mention Election Code Sect. 141.033

in his draft letter request for an Attorney General's opinion sent to the District

Attorney.




Findings of Fact and Conclusions of Law                                                  4



                                                                                         7
,


       23. Plaintiff is entitled to recover attorney's fees from Defendants as follows,

which the Court finds are reasonable and necessary:


       $ 33, 341.00                            For representation through trial and
                                               completion of proceedings in the
                                               District Court.


       $ 2,000.00                              For post-trial proceedings in the
                                               District Court.


       $    12.950.00                          For representation through appeal to
                                               the Court of Appeals, if successful.


       $   5.000.00                            For representation at the petition for
                                               review stage in the Supreme Court of
                                               Texas, if successful.




       $    13.000.00                          For representation at the merits
                                               briefing stage in the Supreme Court of
                                               Texas, if successful.


       $    6.000.00                           For representation through oral
                                               argument and the completion of
                                               proceedings in the Supreme Court of
                                               Texas, if successful.




Findings of Fact and Conclusions of Law                                                   5



                                                                                          8
  ,




        24. The above stated fees are also equitable and just.

        25. Any finding of fact above shall also operate and serve as conclusion oflaw

 as appropriate.


                                    CONCLUSIONS OF LAW

        1. Texas Election Code Section 141.033 titled Filing Applications for More

 than One Office Prohibited. Specifically it states, "(a) A candidate may not file

 applications for a place on the ballot that are not permitted by law to be held by the

 same person. (b) If a person files more than one application for a place on a ballot in

 violation of section, each application filed subsequent to the first one is invalid."

 V.T.C.A. Election Code Section 141.033 (a) and (b).

        2. The undisputed evidence is that Dr. Benson filed the application for City

 Council first. Therefore, the Office of City Council, Place 3, was the only office for

 which Dr. Benson properly filed, elected, and took an oath to serve.

        3. Under that section, her application for election to the Library Board, her

 second filing, was invalid, and she was never properly elected to the Library Board

        4. Dr. Benson never filed a proper application for a place on the ballot for the
 Library Board, so she does not hold, never has properly held, that position.

· Incompatibility of office does not exist.




 Findings of Fact and Conclusions of Law                                                   6



                                                                                           9
       5. Defendants reliance on Election Code Section 201.025 Acceptance of

Another Office is unavailing. That provision states: "If an officer accepts another

office and the two offices cannot be held simultaneously, a vacancy in the first office

occurs on the date that the officer qualifies for the second office.

       6. Neither the Attorney General's Opinion nor Defendants' argument based on

Section 201.025 address the validity of Benson's application for the Library Board,

her second application. Section 141.033 must be considered before the issue of the

post-election oath of office should be considered.

       7. The action by the City Council of Defendant City of Forest Hill, Texas, on

January 6th, 2010 declaring that Plaintiff Benson had "effectively resigned" from the

City Council was and is null and void, ab initio.

       8. The action by the City Council of Defendant City on January 6th, 2017 in

appointing Defendant Brigette Mathis as successor to Plaintiff Benson's Council

position, Place 3, was and is null and void, ab initio.

       9. Permanent injunction relief against Defendant City is warranted.

       10. Plaintiff is entitled to, and the Court awards her attorney's fees, as are

reasonable, necessary, equitable and just, as found in this Court's Sept. 6th First

Amended Final Judgment with Permanent Injunction.

       11. Section 3.11 of Defendant's City Charter states, in part: "A Council Member

charged with conduct constituting grounds for forfeiture or suspension of his office

shall be entitled to a public hearing on demand, and notice of such hearing shall be


Findings of Fact and Conclusions of Law                                                 7



                                                                                        10
published in one or more newspapers of general circulation in the city at least one

week in advance of the hearing." The Court can take this charter provision into

account in determining the equitable and just amount of attorney's fees for Plaintiff.

       12. Defendants reliance on Election Code Sect. 141.034 and related cases is

unavailing. The facts of this case are completely different from the scenario where

one candidate challenges the valid application for an opposing candidate relied on

by Defendants.

       13. This Court has jurisdiction over this case.

       14. Any conclusion of law above shall also operate and serve as a finding of

fact as appropriate.


                    t-!oy(fto~tv l~
       Signed this~tubef              ,.. 2017.




                                                  Susan Heygood McCoy
                                                  Judge Presiding




Findings of Fact and Conclusions of Law                                               8



                                                                                      11
APPENDIX TAB "3"
§ 141.033. Filing Applications for More Than One Office ..., TX ELECTION§ 141.033




  Vernon's Texas Statutes and Codes Annotated
   Election Code (Refs & Annos)
      Title 9. Candidates (Refs & Annos)
        Chapter 141. Candidacy for Public Office Generally (Refs & Annos)
           Subchapter B. Application for Place on Ballot

                                              V.T.C.A., Election Code§ 14i.033

                           § 14i.033. Filing Applications for More Than One Office Prohibited

                                                           Currentness


(a) A candidate may not file applications fo r a place on the ballot for two or more offices that:


  (1) a re not permitted by law to be held by the same person; and


  (2) are to be voted on at one or more elections held on the same day.


(b) If a person files more than one application for a place on a ballot in violation of this section, each application filed
subsequent to the first one filed is invalid.


(c) This section does not apply to candidacy for the office of president or vice-president of the United States and another
office.


Credits
Acts 1985, 69th Leg., ch. 2 11 , § I, eff. Jan. I, I986.



N otes of Decisions (3)

V. T . C. A., Election Code § 141.033, TX ELECTION§ 141.033
Current through the end of the 2017 Regular and First Called Sessions of the 85th Legislature

E nt! or Document                                               © '.!O17 Thom.on Reuters. No daim   lo   original U.S. Governm ent Works.




 WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX TAB "4"
§ 141.034. Limitation on Challenge of Application, TX ELECTION§ 141.034




    KeyCite Yellow Flag - Negative Treatment
Proposed Legislation
  Vernon's Texas Statutes and Codes Annotated
    Election Code (Refs & Annos)
      Title 9. Candidates (Refs & Annos)
        Chapter 141. Candidacy for Public Office Generally (Refs &Annos}
           Subchapter B. Application for Place on Ballot

                                               V.T.C.A., Election Code § 141.034

                                      § 14i.034 . Limitation on Challenge of Application

                                                    Effective: May 23,   2017
                                                          Currentness


(a) An application for a place on the ballot may not be challenged fo r compli a nce with the applicable requirements as
to form , content, and procedure after the day before any ballot to be voted early by mail is mailed to a n address in the
authority's jurisdiction for the election for which the application is made.


(b) This section does not a pply to a determination of a candidate's eligibility.


(c) A challenge must state with specificity how the a pplication does no t comply with the applicable req uirements as to
form, content, and procedure. The auth ority's review of the challenge is limited to the specific items challenged and a ny
response filed with the autho rity by t he challenged candida te.


Credits
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. I, 1986. Amended by Acts 1989, 7 l st Leg., ch. 2. § 7.07, eff. Aug. 28, 1989;
Acts 199 1, 72nd Leg., ch. 203, § 2.57; Acts 199 1, 72nd Leg., ch. 554, § 28, cff. Sept. I. 1991; Acts 1993, 73rd Leg. , ch. 728,
§ 55, eff. Sept. l , 1993; Acts 20 17, 85th Leg .. ch. 95 (S.B. 44), § 2, eff. May 23 , 20 17.



Noles of Decisions (6)

V. T . C. A ., Election Code§ 141.034, TX ELECTION § 141.034
Current through the end of the 2017 R egular and First Called Sessions of the 85th Legislature

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APPENDIX TAB "5"
§ 162.015. Restrictions on Candidacy in General Election ... , TX ELECTION§ 162.015




    KeyCite Yellow Flag- Negative Treatment
Proposed Legislation
  Vernon's Texas Statutes and Codes Annotated
   Election Code (Refs & Annas)
      Title 10. Political Parties
        Subtitle A. Introductory Provisions
           Chapter 162. Regulating Participation in Party Affairs

                                              V.T.C.A., Election Code § 162.015

             § 162.015. Restrictions on Candidacy in General Election by Candidate or Voter in Primary

                                                        Currentness


(a) A person who voted at a primary election or who was a candidate for nomination in a primary is ineligible for a place
on the ballot for the succeeding general election for state and county officers as:


  (1) an independent candidate for an office for which a candidate was nominated in the primary; or


  (2) the nominee of a political party other than the party holding the primary in which the person voted or was a
  candidate.


(b) A person who was a candidate for nomination in a primary election is ineligible for a place on the list of write-in
candidates for the succeeding general election for state and county officers as a write-in candidate for the office sought
by that candidate in the primary.


Credits
Acts 1985, 69th Leg., ch. 211 , § I, eff. Jan. I, 1986. Amended by Acts 1991, 72nd Leg., ch. 363, § 2, eff. Sept. 1, 1991 .



Notes of Decisions (20)

V. T . C. A., Election Code§ 162.015, TX ELECTION§ 162.015
Current through the end of the 2017 Regular and First Called Sessions of the 85th Legislature
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