                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-17-00346-CV


CITY OF FOREST HILL, TEXAS,                                      APPELLANTS
AND BRIGETTE MATHIS

                                         V.

MICHIELLE BENSON, IN HER                                            APPELLEE
OFFICIAL CAPACITY AND
INDIVIDUALLY

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        FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 153-290222-17

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                           DISSENTING OPINION

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      In deciding which of two incompatible elected offices Michielle Benson

properly holds, the majority relies on an election code provision that I believe

does not apply, and so I respectfully dissent.

      On the same day in February 2016, the city secretary received from

Benson signed ballot applications for two elected positions within the City of
Forest Hill: city-council member and library-board trustee. The City processed

her applications that day and in that sequence, and her name appeared on the

May 7, 2016 ballot for each position. She won both races and on May 17 took

oaths of office for both positions in the same sequence—that is, she was first

sworn in as a city-council member and then as a library-board trustee.

      To decide which position Benson actually held, the majority relies on

section 141.033 of the Texas Election Code and concludes that the chronological

order in which Benson submitted her applications controls over that in which she

took her oaths of office and that she is thus rightly a city-council member. But to

me, applying section 141.033 makes little sense in this situation; more logical is

to use the common-law principles of incompatibility and effective resignation from

which election code section 201.025 was derived. That was how the Texas

Attorney General looked at it when—after Benson had been sworn in and had

ascended to both offices—he was asked to opine on whether she could

simultaneously sit on the city council and the library board and, if not, which

position she could properly hold. Under the A.G.’s analysis, that position was

library-board trustee. Tex. Att’y Gen. Op. No. KP-0125 (2017).

                   Why section 141.033 doesn’t work here.

      Section 141.033 is designed to prevent a candidate from applying for more

than one place on a single ballot if the multiple offices the candidate wishes to

seek “are not permitted by law to be held by the same person.” Tex. Elec. Code

Ann. § 141.033(a)(1) (West 2010) (emphasis added). Although the code does not

                                        2
explain what “not permitted by law” means, I take the phrase in its commonplace

sense: that some statute, constitutional provision, rule, ordinance, or regulation

precludes someone from holding two given offices.1 A basic example of this can

be found in the Texas Constitution, which has an entire section within article 16

that is titled “Holding more than one office; exceptions; right to vote.” See Tex.

Const. art. XVI, § 40. There, we see that the “law”—in the form of the

constitution—provides that “[n]o person shall hold or exercise at the same time,

more than one civil office of emolument,”2 with certain exceptions following. Id.

      As the City’s request—sent through the Tarrant County District Attorney’s

office—for an Attorney General opinion correctly stated, neither the council nor

the board position is “one of emolument,” and the city charter does not expressly

      1
        For a discourse on the difference between the law and a law, and how the
former is generally used to refer to the body of jurisprudence that interprets but
does not make “law,” see Law, Garner’s Dictionary of Legal Usage (3d ed. 2011).
Because neither party argues that some binding judicial precedent resolved the
“which-office” conundrum, it is not necessary to parse and prioritize the various
sources of law generally; suffice it to say that not even the trial court’s holding
would constitute “law” as the word is used in section 141.033(a)(1), because trial-
court decisions “have no precedential effect.” In re McReynolds, 502 S.W.3d 884,
888 (Tex. App.—Dallas 2016, no pet.) (citing In re Expunction, 465 S.W.3d 283,
288 (Tex. App.—Houston [1st Dist.] 2015, no pet.)). In fact, the majority opinion
here is not “law” either; it is a statutory interpretation that, if not overruled by the
supreme court, binds only later suits involving the same subject matter within our
jurisdictional territory. See Brazos Elec. Power Coop., Inc. v. Tex. Comm’n on
Envtl. Quality, 538 S.W.3d 666, 688, n.15 (Tex. App.—El Paso 2017, pet.
pending); Messina v. State, 904 S.W.2d 178, 181 (Tex. App.—Dallas 1995, no
writ).
      2
       An emolument is “[a]ny advantage, profit, or gain received as a result of
one’s employment or one’s holding of office.” Emolument, Black’s Law Dictionary
(10th ed. 2014).

                                           3
prohibit holding a council position and a board position simultaneously. Indeed,

the very fact that the City sought an opinion about whether Benson’s two offices

conflicted under the common-law doctrine of incompatibility shows that no “law”

prohibited her from holding them both when she presented her ballot applications

in February 2016. The request’s summary makes this clear:

      It seems possible in the current situation that the duties of the two
      offices could address overlapping issues. For example: water and
      sanitary sewer service to the library; acquisition of land for the
      library; regulation by the city of land owned by the library; and, as
      previously stated, contracting for election services. Are the two
      positions incompatible? [Emphases added.]

      And even months later, after the May 2016 election and Benson’s

swearing(s)-in, when the A.G. opined that the incompatibility doctrine precluded

Benson’s dual office-holding, still there was no “law” to that effect: A.G. opinions,

though persuasive, are not controlling authority and are therefore not “law.”

Comm’rs Court of Titus Cty. v. Agan, 940 S.W.2d 77, 82 (Tex. 1997); Skypark

Aviation, LLC v. Lind, 523 S.W.3d 869, 874 (Tex. App.—Eastland 2017, no pet.);

City of Houston v. S. Pac. Transp. Co., 504 S.W.2d 554, 557 (Tex. Civ. App.—

Houston [14th Dist.] 1973, writ ref’d n.r.e.) (describing the principle that A.G.

opinions “do not have the force of law” as “settled”).

      Moreover, the trial court’s own judgment expressly recognizes that “no one

knew that [Benson] 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.”

That is, the trial court tacitly (or really not so tacitly) admitted that no


                                         4
constitutional provision, statute, rule, etc. existed in February 2016 by which

Benson, her opponents, the City of Forest Hill, or the city secretary who

processed Benson’s two ballot applications could or should have known that the

two offices “are not permitted by law to be held by the same person.” Tex. Elec.

Code Ann. § 141.033(a)(1).

      Thus, in February 2016 Benson could not have filed “more than one

application for a place on a ballot in violation of this section,” and so, as a further

consequence of the statute’s plain meaning, the balance of that sentence—“each

application filed subsequent to the first one filed is invalid”—cannot possibly

apply. Id. § 141.033(b) (emphasis added).

      The election code incorporates the Code Construction Act (chapter 311,

Texas Government Code). See id. § 1.003(a) (West 2017). That makes our

primary task one of giving effect to the legislature’s intent. Tex. Gov’t Code Ann.

§ 311.021 (West 2013); Galbraith Eng’g Consultants, Inc. v. Pochucha, 290

S.W.3d 863, 867 (Tex. 2009). And unless a different meaning is apparent from

the context, or unless the plain meaning leads to absurd or nonsensical results,

the plain meaning of a statute’s text is the best expression of legislative intent.

City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008). Indeed, “when

interpreting a statute, ‘[t]he text is the alpha and the omega of the interpretive

process.’” Bosque Disposal Sys., LLC v. Parker Cty. Appraisal Dist., No. 17-

0146, 2018 WL 2372810, at *2 (Tex. May 25, 2018) (quoting BankDirect Capital

Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86 (Tex. 2017)). The Texas

                                          5
Supreme Court put it nicely in BankDirect Capital: “If a case can be decided

according to the statute itself, it must be decided according to the statute itself.

This is a bedrock principle.” 519 S.W.3d at 78.

      It is only by erroneously applying section 141.033(b) that the majority can

hold that Benson’s second-filed library-board application was “invalid” the

moment it was filed and that she was therefore a candidate only for city council

when the May 2016 election occurred. Accordingly, I must respectfully conclude

that the majority’s holding is incorrect.3 To me, the error is functionally the same


      3
        I recognize that the City did not argue the inapplicability of section
141.033 on this basis, but we are tasked with reviewing both statutory-
construction issues and the trial court’s conclusions of law de novo. See
Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389 (Tex. 2014)
(addressing statutory construction); Trinity Drywall Sys., LLC v. Toka Gen.
Contractors, Ltd., 416 S.W.3d 201, 207 (Tex. App.—El Paso 2013, pet. denied)
(addressing conclusions of law). The City instead focused its argument on the
deadline for challenging ballot applications that is found in section 141.034 and
contended that the trial court essentially allowed a post-election challenge to a
ballot application when section 141.034’s time limits made such a challenge
moot. That section is obviously designed to ensure a degree of certainty that
ballots are accurate and do not have candidates erroneously appearing on or left
off them. The few cases on this subject recognize that a challenge to someone’s
candidacy on a ballot (on a ground other than ineligibility, which is a different
issue altogether, compare Tex. Elec. Code Ann. § 141.001 (West 2017), with id.
§ 141.034(b)) becomes moot once absentee voting has begun. See, e.g., In re
Crenshaw, No. 05-17-00330-CV, 2017 WL 1292013, at *1 (Tex. App.—Dallas
Apr. 7, 2017, orig. proceeding) (mem. op.); Law v. Johnson, 826 S.W.2d 794,
796–97 (Tex. App.—Houston [14th Dist.] 1992, no writ). I certainly agree with the
City that it is “illogical that the legislature would provide a deadline to challenge
an application, as seen in section 141.034, but then allow an elected official to
claim an application was invalid months after the election occurred”; but I am not
persuaded that section 141.034 comes into play on these facts. In that much I
agree with the majority’s statement that “Section 141.034 has no application
here.” That still leaves unfilled the analytical hole explaining why section 141.033
applies.

                                         6
as in the trial court’s judgment, when that court wrote that the “Attorney General’s

opinion related back to the time of filing the ballot place applications, not just to

the Oaths of Office.” But according to the statutory text, that can be true only if

the A.G. opinion is viewed as “law” under section 141.033(a)(1). It is not.

      The trial court’s conclusions of law incorporate this misreading in setting

out that Benson filed her city-council application first; that she was not permitted

by law to hold both offices; that city council was the only office for which she was

properly elected and took an oath to serve; that her application for the library-

board position was “invalid, and she was never properly elected to the Library

Board”; that she never properly applied for a place on the ballot for the library

board and so “never has properly held” that position; and that therefore,

“[i]ncompatibility of office does not exist.”

      All of this is in service to the trial court’s legal conclusion that “[s]ection

141.033 must be considered before the issue of the post-election oath of office

should be considered.” But given that chapter 141 of the election code is titled

“Candidacy for Public Office Generally” and falls within Title 9 (“Candidates”) of

the election code, it strikes me as unworkable to construe the code in a way that

ignores the fact that an actual election has occurred in the meantime.

  Why the doctrine of incompatibility and implied resignation work better.

      The parties have moved far beyond the “candidacy” phase covered by

chapter 141. As of May 17, 2016, after winning both elections ten days earlier,

Benson qualified for and became an “officer” by taking the oaths of office for both

                                            7
the city council and the library board. See generally State ex rel. Glenn v. Jordan,

28 S.W.2d 921, 923 (Tex. Civ. App.—Amarillo 1930, writ dism’d w.o.j.)

(discussing qualifying for office by taking required oath and posting any required

bond); Buchanan v. Graham, 81 S.W. 1237, 1239 (Tex. Civ. App.—Fort Worth

1904, no writ) (recognizing that an officer qualifies by taking the necessary oath

of office); see also Tex. Att’y Gen. Op. No. LO-97-047 (1997) (concluding that

because, under the Texas Constitution, a board member who resigns continues

to hold office until his successor has qualified, he may not be appointed as

chancellor until the governor has appointed his successor and that person has

taken the oath of office). Although not using the word “qualify,” the City’s home-

rule charter provides that “[e]very officer of the City shall, before entering upon

the duties of his office, take and subscribe to the oath of office as prescribed by

the Constitution of the State of Texas.” Forest Hill, Tex., Code of Ordinances, art.

X, § 10.06 (2013).

      It seems beyond question that upon taking the first oath, for city council,

Benson was then an “officer” within the meaning of section 201.025 of the

election code and, more generally, under the common-law incompatibility

doctrine at the time she took the second oath, for library board. As the A.G.

concluded, the result was that she impliedly resigned from the city council. 4 See


      4
         The A.G. opinion does not mention section 201.025, which provides that
“[i]f 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.” Tex. Elec. Code Ann. § 201.025 (West 2010). But
                                         8
Tex. Att’y Gen. Op. KP-0125 (2017). The majority believes that applying section

201.025 or the common law from which it was derived would lead to absurd

results because Benson took both oaths on the same day, saying that “it cannot

be presumed that Benson intended to resign her city-council position on the very

same day that she took the oath of office for that position.” The same could be

said, of course, if Benson had qualified for the library-board position the next day,

or the next week, or the next month, for we can safely say from the parties’

pleadings and positions that Benson never intended to resign from the city

council; it was clearly the position she preferred to hold once the A.G. opined that

she could not hold both.

      Neither the statute nor the common law suggests that one must have been

in office for some minimum time period before the effective-resignation principle

comes into play. We know from at least one case that 24 hours was long enough

for someone to have been an officer before qualifying for another office the next

day and thus effectively resigning from the previous day’s office. State ex rel.

Kingsbury v. Brinkerhoff, 66 Tex. 45, 46, 17 S.W. 109, 110 (1886) (holding that

the pre-code caselaw cited by the A.G. is to the same effect. Pruitt v. Glen Rose
Indep. Sch. Dist. No. 1, 126 Tex. 45, 49, 84 S.W.2d 1004, 1006 (1935); Thomas
v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 152 (Tex. Comm’n App.
1927, judgm’t adopted). In any event, the letter through which the City asked for
the A.G.’s opinion did not mention any election-code sections but did cite those
two cases. At the temporary-injunction hearing, the city attorney agreed that
“neither one nor the other of the election statutes were what [he] had in mind at
that time,” explaining that the “question that was being addressed was one of the
doctrine of conflicting loyalties with regard to dual office holding. And that was the
issue.”

                                          9
city secretary had effectively resigned that office by taking the oath for the office

of recorder the day after qualifying as city secretary). I think it would be more

absurd to read into the statute (or into the common-law principle) a requirement

that one must have been an officeholder for at least a day, or half a day, or more

than 83.7 minutes, before triggering its application when there seems no logical

or textual reason to do so.

      We live in a linear world where events necessarily occur sequentially. The

legislature, and the supreme court before it, have decided that taking the oath for

an incompatible office works a resignation from the first-held office without

requiring that a given time elapse between the two events, and I would abide by

that principle even when the second oath comes right on the heels of the first.

      For these reasons, I would reverse the judgment below and remand the

attorney’s-fee issue to the trial court; because the majority has affirmed the

judgment, I respectfully dissent.




                                                    /s/ Elizabeth Kerr
                                                    ELIZABETH KERR
                                                    JUSTICE

DELIVERED: July 12, 2018




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