Opinion issued September 3, 2014




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00498-CV
                           ———————————
            THE HONORABLE GEORGE E. RISNER, Appellant
                                        V.
  HARRIS COUNTY REPUBLICAN PARTY, PAUL SIMPSON, CHAIR,
             AND LEONILA SALAZAR, Appellees


                   On Appeal from the 269th District Court
                            Harris County, Texas
                      Trial Court Case No. 2014-02621


                                 OPINION

      In this election-code dispute, we consider whether the trial court abused its

discretion when it denied appellant George E. Risner’s petition for a permanent

injunction to enjoin appellee the Harris County Republican Party and its then-
chair, Jared Woodfill,1 from certifying appellee Leonila Salazar’s name for a place

on the primary election ballot and the November general election ballot for the

position of Justice of the Peace, Precinct 2, Place 2 in Harris County. We reverse.

                                   Background

      This case involves an election code dispute regarding the position of Justice

of the Peace, Precinct 2, Place 2, in Harris County, Texas. Risner was the sole

candidate for the position in the Democratic Party primary and received a majority

of the votes cast in the Democratic Party Primary Election held on March 4, 2014.

Salazar was the sole candidate for the position in the Republican Party primary and

received a majority of the votes cast in the Republican Party Primary Election held

on March 4, 2014. Absent judicial intervention, Risner and Salazar will face each

other in the general election in November 2014.

      Prior to the primary election, Salazar hired Colonnade Marketing, by and

through Fred Blanton, as a consultant for her campaign. In early November 2013,

Blanton recommended to Salazar that they hire a third party to collect petition

signatures for her application for a position on the Republican Party Primary

Ballot. Blanton and Salazar met with Ralph Garcia, whom they hired to collect the

signatures. At the meeting, Blanton explained the requirements for collecting

1
      Jared Woodfill was the chair of the Harris County Republican Party in December
      2013. Paul Simpson has since replaced Jared Woodfill as the chair of the Harris
      County Republican Party and has been substituted for Jared Woodfill as an
      appellee in this case.
                                         2
petition signatures to Garcia. Also at that meeting, Garcia informed Blanton that

there were other individuals who would be assisting Garcia in obtaining the

signatures. Salazar and Blanton hired Garcia to obtain 1,000 signatures.

      On December 3, 2013, Garcia provided 38 petition pages with a total of 365

petition signatures to Blanton. These pages were not signed by the petitions’

circulators, Ralph Garcia, Iris Irigoyen, Annette Irigoyen, and David Basurto. Two

days later, Garcia provided an additional four pages, each of which contained 10

petition signatures and the notarized signature of one of the circulators. The

circulators swore to these additional pages before a notary public on December 5,

2013. Upon receiving the additional pages, Blanton placed the page signed by

each circulator with the related pages from that circulator that had been received on

December 3, 2013, placed the circulator’s first name on each page, and added

appropriate page numbering for each circulator’s bundle of petition pages.

      On December 6, 2013, Salazar met Blanton at the Harris County Republican

Party’s headquarters. Salazar added seven pages containing 52 petition signatures

to the 42 pages supplied by Garcia. Salazar then submitted her application and the

49 pages of petition signatures, containing 457 total signatures, together with the

appropriate filing fee, to appellee Harris County Republican Party (“HCRP”) and

Jared Woodfill. At the time she submitted her application and petition, Salazar

was unaware of Blanton’s actions on December 3, 2013 or December 5, 2013.


                                         3
        Salazar’s application and petition were timely filed three days before the

filing deadline of 6:00 p.m. on December 9, 2013. Jared Woodfill, then-chair of

the HCRP, reviewed Salazar’s application and petition and, finding no facial

defects in the paperwork, certified Salazar for the primary ballot on December 13,

2013.

        On December 19, 2013, counsel for Risner sent a letter to Salazar, which

was copied to the HCRP, informing Salazar that there might be a problem with her

application and petition. The letter contained no evidence and did not request any

action to be taken.

        On January 21, 2014, Risner filed an “Original Petition and Application for

Temporary Restraining Order and Temporary and Permanent Injunctions.” In his

petition, Risner sought to enjoin the HCRP and its chair from certifying Salazar’s

name for inclusion on both the “Republican primary ballot” and “the general

election ballot as the Republican nominee for Harris County Justice of the Peace,

Precinct 2, Place 2.”     Risner filed his petition against the HCRP and Jared

Woodfill, as chair of the HCRP. Salazar intervened in the lawsuit on February 4,

2014.

        The HCRP and Woodfill filed their “Original Answer” to the petition on

February 17, 2014, asserting a general denial to the allegations and arguing that the




                                         4
petition would become moot on February 18, 2014, that Risner lacked standing,

and that laches prohibited Risner’s suit.

      In-person early voting began on February 18, 2014. The primary elections

took place on March 4, 2014. Salazar was uncontested on the Harris County

Republican Primary ballot for Justice of the Peace, Precinct 2, Place 2 and received

a majority of the votes cast in the election. Risner was uncontested on the Harris

County Democratic Primary ballot for Justice of the Peace, Precinct 2, Place 2 and

received a majority of the votes cast in the election.

      The trial court conducted an oral hearing on Risner’s request for a temporary

injunction on April 14 and 15, 2014. At the hearing, Risner called an expert in

handwriting analysis, who provided uncontroverted testimony that 305 of the 457

petition signatures submitted by Salazar were forged. Further, Risner submitted

four affidavits, one from each circulator, stating that they did not obtain or witness

any of the signatures on 39 of the petition pages submitted with Salazar’s

application.

      On April 23, 2014, the trial court issued an “Order on Temporary

Injunction.” In the order, the trial court found that it had subject matter jurisdiction

over the case and that Risner was entitled to temporary injunctive relief. The trial

court further found, however, that Salazar was entitled to an opportunity to cure

her application and petition.


                                            5
      As part of its order, the trial court issued findings of fact and conclusions of

law. Included in the findings, the trial court found that Salazar’s application

contained no facial defects within the four corners of the application; that the

HCRP and Woodfill found no facial defects in the application; that the HCRP and

Woodfill relied on the affidavits of each of the circulators and treated the petition

pages as satisfying the requirement that Salazar provide no less than 250 valid

signatures in support of her application; that Salazar was first notified of a potential

irregularity in her application on December 21, 2013, when she received the letter

from Risner’s attorney; that the HCRP and Woodfill were first notified of potential

irregularities in Salazar’s application no sooner than December 20, 2013, when

they received the letter from Risner’s attorney; that neither Salazar nor the HCRP

and Woodfill had any notice of any irregularities in her application prior to the

December 9, 2013 deadline to certify her application; that Risner’s expert’s

testimony that 305 of the 457 signatures were forgeries was uncontested; and that

the circulators that Salazar and Blanton hired failed to obtain or witness the

signatures on 39 of the petition pages submitted with Salazar’s application.

      Based on its findings, the trial court concluded that Salazar was eligible to

hold the office; that neither Salazar nor Blanton participated in any criminal or

unethical behavior; that neither the HCRP nor Woodfill engaged or participated in

criminal or unethical behavior; that Salazar’s application page met all of the


                                           6
requirements of the Election Code and was valid; that the petition pages supporting

Salazar’s application that were supported by her own affidavit met all of the

requirements of the Election Code, and HCRP’s and Woodfill’s acceptance of

these pages was proper; that, without resort to extrinsic evidence, the remaining

petition pages were facially valid and met all requirements of the Election Code

and HCRP’s and Woodfill’s acceptance of the petition pages was proper; that the

circulator affidavits signed by Ralph Garcia, Iris Irigoyen, Annette Irigoyen, and

David Basurto contained sworn statements of fact which were not true, and, as a

result, the petition pages supported by these circulators’ affidavits did not meet the

Election Code requirements; and that the signatures on the petition pages supported

by the circulators’ affidavits, other than Salazar’s, were not in the handwriting of

the purported signatories.

      The trial court further concluded that certification of Salazar’s name for a

position on the ballot “would violate or threaten a violation of the Election Code,

causing harm or the danger of harm to Plaintiff Risner.” The trial court therefore

granted a temporary injunction, prohibiting the HCRP and Woodfill from

certifying Salazar’s name for inclusion on the general election ballot in November.

      Finally, the trial court granted Salazar’s request for an opportunity to cure

the defects in her application, allowing Salazar to seek new signatures from

eligible voters by no later than May 5, 2014. The trial court further granted leave


                                          7
to HCRP and Woodfill to either accept or reject the new signatures by no later than

May 10, 2014.

      Salazar submitted new petition pages on May 5, 2014, which the HCRP and

Woodfill accepted on May 10, 2014.           The new petition pages contained 502

signatures.

      The trial court held a hearing on Risner’s request for a permanent injunction

on June 3, 2014. At the hearing, the HCRP offered the amended petition pages for

admission, and the trial court admitted the petition pages over Risner’s objection.

Four of the signatures were from voters who had voted in the Democratic Party’s

primary, and 33 of the signatures were from voters who did not live in the precinct.

Accordingly, the new pages contained 465 valid signatures.

      On June 11, 2014, the trial court signed a final judgment, denying Risner’s

request for a permanent injunction and granting Salazar’s claim for an opportunity

to cure her defective application. The trial court further ordered the HCRP and

Jared Woodfill or his successor to certify Salazar’s name for the office of Harris

County Justice of the Peace, Precinct 2, Place 2.

      On June 20, 2014, Risner appealed from the trial court’s judgment. On July

2, 2014, the HCRP and Woodfill filed a notice of appeal. Salazar also filed a

notice of appeal on July 2, 2014.




                                         8
                               The Parties’ Arguments

          Risner filed his appellant’s brief on July 28, 2014. In his brief, Risner

argues that the trial court abused its discretion when it denied his request for a

permanent injunction, because (1) the Election Code was amended in 2011 to

prohibit a candidate from amending an application for a place on the ballot;

(2) even if a right to cure defects in an application still exists, there has never been

an equitable right to cure a defect, such as fraud, that is not apparent from the face

of the application; and (3) Salazar’s original application, without the amended

petition pages, contains an insufficient number of valid signatures, so that Salazar

does not meet the statutory requirements for a place on the ballot. Risner seeks a

permanent injunction enjoining the HCRP and Paul Simpson, the current chair of

the HCRP, from certifying Salazar’s name for inclusion on the general election

ballot.

          HCRP and Paul Simpson filed an “appellees’ brief” on August 7, 2014 and

an “appellants’ brief” on August 8, 2014. HCRP and Simpson argue that the trial

court did not abuse its discretion when it denied Risner’s request for a permanent

injunction. According to HCRP and Simpson, Salazar’s original application “was

free from any facial defects” and contained the requisite number of signatures, so it

satisfied the Election Code requirements; they further contend that “Salazar’s cure

efforts overcame all extrinsic defects and entitled her to be on the ballot.” Second,


                                           9
the trial court’s denial of injunctive relief is supported by laches, because “Risner

did not file suit until January 21,” “Risner’s delays were sufficient alone to deny

his petition,” and “equitable relief is not available at this late date in the election

process.” Third, the Texas Election Code requires a primary candidate who wins

the nomination to be certified for the general election ballot, and it does not allow

for decertification of an elected primary candidate except for candidates later found

to be ineligible. Fourth, the trial court lacked subject matter jurisdiction over this

case because Risner’s challenge was required to be concluded by February 17,

2014, the day before in-person early voting began and, for the same reason, this

case is now moot. Fifth, nothing in the Election Code mandates exclusion from the

ballot as a remedy when a curable defect is discovered, and the legislative

amendment prohibiting amendment of applications after the filing deadline does

not prohibit courts from permitting a candidate to cure a defective application.

Finally, the truthfulness of a circulator’s affidavit should not be subject to

challenge in a civil proceeding, but should strictly be limited to criminal

proceedings.

      Finally, Salazar filed a brief on August 7, 2014 and a “Cross-Appeal Brief”

on August 8, 2014. In her briefs, Salazar contends that the trial court did not abuse

its discretion in denying Risner’s request for a permanent injunction. Salazar

contends that Risner either waived his complaint or is barred by laches from


                                          10
seeking relief, because he did not obtain any relief prior to February 17, 2014.

Salazar further contends that Risner’s complaint is now moot, because the

Republican Party Primary Election has already occurred. Salazar also argues that

Risner waived his complaint by failing to object to Salazar’s amended petition

pages by May 16, 2014, the deadline set by the trial court. Finally, Salazar

contends that section 172.021(e) of the Texas Election Code is unconstitutional.

                      Applicable Principles of Election Law

      To be entitled to a place on a primary election ballot, a candidate must make

an application for a place on the ballot. TEX. ELEC. CODE ANN. § 172.021(a) (West

Supp. 2014). A candidate for justice of the peace in a county with a population of

more than 1,500,000 must, in addition to filing an application, file either a petition

with a minimum of 500 signatures or a petition with a minimum of 250 signatures

and a filing fee. Id. § 172.021(e).

      A candidate’s application must be in writing, be signed and sworn to by the

candidate, and be timely filed. Id. § 141.031(a)(1)–(3) (West Supp. 2014). When

an application is accompanied by a petition, “the petition is considered part of the

application.” Id. § 141.032(c) (West Supp. 2014).

      A petition, to be valid, must be timely filed and contain the requisite number

of valid signatures. Id. § 141.062(a)(1)–(2) (West Supp. 2014). For a signature to

be valid, the signer must be a registered voter of the appropriate territory or have


                                         11
been issued a registration certificate for a registration that will become effective

before the applicable election; the petition must include the signer’s address and

date of birth or voter registration number; the petition must contain a circulator’s

affidavit; the page of the petition on which the signature is entered must contain

each statement required to appear on the petition; and the signature must be in the

signer’s handwriting. Id. § 141.063(a), (b) (West 2010). Finally, each part of a

petition must contain an affidavit by the petition’s circulator, stating that the

circulator (1) pointed out and read to each signer each statement pertaining to the

signer that appears on the petition, (2) witnessed each signature, (3) verified each

signer’s registration status, and (4) believes each signature is genuine.        Id.

§ 141.065(a) (West 2010).

      The candidate’s application to be on the ballot for the position of justice of

the peace must be filed with the county chair or the secretary of the county

executive committee for the candidate’s political party. Id. § 172.022(a) (West

Supp. 2014). In 2013, the filing deadline was at 6:00 p.m. on Monday, December

9. See id. § 172.023(a) (West Supp. 2014). After the filing deadline, a candidate

may not file, and the county chair may not accept, an amended application or an

amendment to an application. Id. § 141.032(g).

      Upon receiving an application, the county chair must review the application

“to determine whether it complies with the requirements as to form, content, and


                                        12
procedure.” Id. § 141.032(a). When an application is accompanied by a petition,

the chair must review the application “as soon as practicable after the date the

application is received.” Id. § 141.032(c).

      If an application does not comply with the applicable requirements, the chair

must reject the application and immediately notify the candidate of the reason for

the rejection. Id. § 141.032(e). If an application complies with the requirements,

the county chair must accept the application and submit the candidate’s name and

other information to the secretary of state. Id. § 172.029(a) (West Supp. 2014); cf.

id. § 172.028(a).

      A determination that an application complies with the applicable

requirements does not preclude a subsequent determination that the application

does not comply. Id. § 141.032(d). If the county chair accepts an application and

later determines that a candidate’s application does not comply with the applicable

requirements, the chair must notify the secretary of state. Id. § 172.029(d).

      Nevertheless, “[a]n 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 the beginning of early voting by personal

appearance for the election for which the application is made.” Id. § 141.034(a)

(West 2010).




                                         13
      In 2014, the first day for early voting by personal appearance was February

18, 2014. See id. § 41.007(a) (West Supp. 2014), § 85.001(a), (c) (West 2010).

The primary election was March 4, 2014. See id. § 41.007(a).

      After the primary election, the “county chair shall certify in writing for

placement on the general election ballot the name and address of each primary

candidate who is nominated for a county or precinct office.” Id. § 172.117(a)

(West 2010).

      Finally, “[a] person who is being harmed or is in danger of being harmed by

a violation or threatened violation of this code is entitled to appropriate injunctive

relief to prevent the violation from continuing or occurring.” Id. § 273.081 (West

2010).

                                    Jurisdiction

      As an initial matter, we consider our jurisdiction over this appeal. In their

third through fifth issues, HCRP and Simpson argue that this case is moot, because

the Election Code does not permit the relief Risner seeks, any challenge to a

candidate’s application must be concluded before the first day of early voting by

personal appearance, and the Republican Party Primary Election has already

occurred. Similarly, Salazar, as part of her first issue, contends that this case is

moot because the primary election has already occurred. “Appellate courts are




                                         14
prohibited from deciding moot controversies.” Nat’l Collegiate Athletic Ass’n v.

Jones, 1 S.W.3d 83, 86 (Tex. 1999).

Salazar’s Election in the Primary Did Not Render This Case Moot

        The Texas Election Code states that an application for a place on the ballot

cannot be challenged “after the day before the beginning of early voting by

personal appearance for the election for which the application is made.” TEX.

ELEC. CODE ANN. § 141.034(a). Risner’s challenge was initiated on January 21,

2014—26 days before the deadline to challenge Salazar’s application. The trial

court, however, did not rule on the application for temporary injunction until April

23, 2014 and it did not rule on the request for a permanent injunction until June 11,

2014.

        Both candidates were unopposed in the primary elections, and, absent

injunctive relief, they will face each other in the November general election.

Further, the only limitation on a court’s authority to grant injunctive relief is the

election schedule itself. See In re Gamble, 71 S.W.3d 313, 318 (Tex. 2002) (orig.

proceeding); Sachtleben v. Bennett, No. 14-10-00322-CV, 2010 WL 3168395, at

*2 (Tex. App.—Houston [14th Dist.] Aug. 12, 2010, no pet.) (mem. op.). Because

Salazar was unopposed in the primary election, issuance of an injunction at this

point would have no effect on the primary election. Nor would issuance of an

injunction at this point interfere with the November general election.           See


                                         15
Sachtleben, 2010 WL 3168395, at *2; Triantaphyllis v. Gamble, 93 S.W.3d 398,

406, 407 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). Accordingly, we

conclude that this matter is not moot. See In re Angelini, 186 S.W.3d 558, 561

(Tex. 2006) (orig. proceeding) (“As both Angelini and Bustamante are unopposed

in their respective primaries, there should be ample time before the general election

in November for a trial court to make its findings, and for any appellate review to

be conducted first in the court of appeals rather than this Court.”); Fitch v.

Fourteenth Court of Appeals, 834 S.W.2d 335, 337 (Tex. 1992) (orig. proceeding);

Sachtleben, 2010 WL 3168395, at *2; Triantaphyllis, 93 S.W.3d at 406, 407.

The Election Code Authorizes Relief

      The Texas Election Code requires a county chair to “certify in writing for

placement on the general election ballot the name and address of each primary

candidate who is nominated for a county or precinct office.” TEX. ELEC. CODE

ANN. § 172.117(a). There is one exception to this requirement: “A candidate’s

name may not be certified if, before delivering the certification, the county chair

learns that the name is to be omitted from the ballot” because “the candidate

withdraws, dies, or is declared ineligible.” Id. §§ 145.035, 172.117(c).

      Nevertheless, the Texas Election Code also states that a “person who is

being harmed or is in danger of being harmed by a violation or threatened violation

of this code is entitled to appropriate injunctive relief to prevent the violation from


                                          16
continuing or occurring.”      Id. § 273.081.      And, as discussed above, the

determination of a challenge to a candidate’s application may be made after the

primary election, so long as the determination does not interfere with the election

schedule and the challenge was initiated prior to the statutory deadline for bringing

such a challenge. See id. § 141.034(a); In re Gamble, 71 S.W.3d at 318; Fitch, 834

S.W.2d at 337; Sachtleben, 2010 WL 3168395, at *2; Triantaphyllis, 93 S.W.3d at

406, 407.

      Here, Salazar has been elected as the Republican nominee for the position of

Harris County Justice of the Peace, Precinct 2, Place 2. Ordinarily, the election

result would require the Chair of the Harris County Republican Party to certify her

name for inclusion on the general election ballot.       Nevertheless, Salazar was

unopposed in the primary election and Risner initiated a challenge to her

application before February 17, 2014. As a result, section 273.081 of the Texas

Election Code authorizes injunctive relief to be granted on Risner’s behalf, if

Salazar’s application is in violation of the election code. TEX. ELEC. CODE ANN.

§ 273.081.

Risner Has Standing

      In their brief, HCRP and Simpson include a section styled “Risner lacks

standing to pursue challenge to application.” Although HCRP and Simpson do not

present any argument in their brief related to standing, standing is implicit in the


                                         17
concept of subject matter jurisdiction, and we will address the issue. See Tex.

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–46 (Tex. 1993).

      “A plaintiff has standing when it is personally aggrieved . . . .” Nootsie, Ltd.

v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). The

general test for standing requires a real controversy between the parties that will

actually be determined by the judicial declaration sought. Tex. Ass’n of Bus., 852

S.W.2d at 446 (quoting Bd. of Water Eng’rs v. City of San Antonio, 283 S.W.2d

722, 724 (Tex. 1955)).

      Here, Risner, at the time he filed the petition in the trial court, was the sole

candidate for the Democratic party’s nominee for the position of Harris County

Justice of the Peace, Precinct 2, Place 2. Salazar was the sole candidate to become

the Republican nominee for the same position. Risner therefore had an interest in

not being opposed by a candidate whose application and petition did not qualify

her for a position on the ballot. See In re Jones, 978 S.W.2d 648, 651 (Tex.

App.—Amarillo 1998, orig. proceeding) (holding candidate for office has interest

in not being opposed by ineligible candidate). Accordingly, Risner had standing to

challenge Salazar’s application. See Fitch, 834 S.W.2d at 337–38 (considering

challenge by sole candidate in Republican Party primary to sole candidate for

Democratic Party primary’s application); Sachtleben, 2010 WL 3168395, at *2

(same); Triantaphyllis, 93 S.W.3d at 406, 407 (considering appeal by sole


                                         18
candidate in Democratic Party primary in case involving rejection of Republican

candidate’s application for position on primary ballot).

                     Is the Election Code Unconstitutional?

      In her sole issue in her “Cross-Appeal Brief,” Salazar argues that section

172.021(e) of the Texas Election Code is an unconstitutional violation of her right

to equal protection under Article I, section 3 of the Texas Constitution.

      To decide a constitutional challenge to an election statute, we must consider

the character and magnitude of the asserted injury to the rights protected by the

constitution, identify and evaluate the State’s interests for the burden imposed, and

determine the legitimacy and strength of those interests and whether those interests

necessitate the burden on a party’s rights. See Anderson v. Celebrezze, 460 U.S.

780, 789, 103 S.Ct. 1564, 1570 (1983). Further, in an equal protection challenge, a

statutory classification is evaluated with strict scrutiny if it interferes with a

fundamental right or discriminates against a suspect class. See Walker v. State,

222 S.W.3d 707, 711 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). But if

the classification does not interfere with a fundamental right or discriminate

against a suspect class, it need only be rationally related to a legitimate

governmental purpose to survive an equal protection challenge. Id.

      Candidacy for an elected position is not a fundamental right, and the

requirement that a candidate for the office of justice of the peace in a county with a


                                         19
population of more than 1.5 million obtain 250 signatures to be entitled to a place

on the general primary election ballot does not impose a significant burden on a

person’s right to run for office. See Celebrezze, 460 U.S. at 788–89, 103 S. Ct. at

1570; State v. Hodges, 92 S.W.3d 489, 498 (Tex. 2002) (holding candidacy is not

fundamental right). Nor does such a requirement interfere with a fundamental

right or discriminate against a subject class, as it applies equally to all persons,

regardless of political party, in counties with populations greater than 1.5 million.

See Walker, 222 S.W.3d at 711. And, because “[t]he State has the undoubted right

to require candidates to make a preliminary showing of substantial support in order

to qualify for a place on the ballot, because it is both wasteful and confusing to

encumber the ballot with the names of frivolous candidates,” the statute is

rationally related to a legitimate state interest in preventing or discouraging an

unqualified or frivolous candidate from obtaining a place on the ballot.

Celebrezze, 460 U.S. at 788 & n.9, 103 S. Ct. at 1570 & n.9; see also Walker, 222

S.W.3d at 711.

        Accordingly, we overrule Salazar’s constitutional challenge to Texas

Election Code section 172.021(e). See Celebrezze, 460 U.S. at 789, 103 S. Ct. at

1570.




                                         20
                   Did the Trial Court Abuse Its Discretion?

      In his appellate brief, Risner argues that the trial court abused its discretion

by granting Salazar an opportunity to cure her defective petition and by denying

his request for a permanent injunction, because there is no right to cure a defect in

an application that is not apparent from the face of the application and because the

Election Code prohibits a candidate from amending her petition. In response,

HCRP and Simpson contend that the trial court did not abuse its discretion,

because (1) the original application satisfied the requirements of the election code,

(2) the trial court had authority to provide Salazar an opportunity to cure her

application, which she did, and (3) the trial court’s judgment is supported by

laches. In her response, Salazar contends that Risner waived his complaint by

failing to timely obtain a ruling, that the trial court’s judgment is supported by

laches, and that Risner waived his complaint to the trial court’s order granting

Salazar an opportunity to cure.

Standard of Review

      Permanent injunctive relief may be granted upon a showing of (1) the

existence of a wrongful act, (2) the existence of imminent harm, (3) the existence

of irreparable injury, and (4) the absence of an adequate remedy at law. See

Triantaphyllis, 93 S.W.3d at 401; Jim Rutherford Invs., Inc. v. Terramar Beach

Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex. App.—Houston [14th Dist.] 2000, pet.


                                         21
denied).   Further, a court determining the appropriateness of a permanent

injunction should balance the competing equities, including the public interest. See

In re Gamble, 71 S.W.3d at 317; Triantaphyllis, 93 S.W.3d at 401–02.

      In an appeal from the denial of a permanent injunction, we apply an abuse of

discretion standard. See Fort Bend Cnty. Wrecker Ass’n v. Wright, 39 S.W.3d 421,

425 (Tex. App.—Houston [1st Dist.] 2001, no pet.). “A trial court abuses its

discretion by (1) acting arbitrarily and unreasonably, without reference to guiding

rules or principles, or (2) misapplying the law to the established facts of the case.”

Triantaphyllis, 93 S.W.3d at 402 (citing Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241–42 (Tex. 1985)). But “where the facts conclusively show

that a party is violating the substantive law, the trial court should enjoin the

violation, and in such case, there is no discretion to be exercised.” Terramar

Beach Cmty. Ass’n, 25 S.W.3d at 848.

      Finally, “[w]e review de novo the trial court’s conclusions of law.”

Sachtleben, 2010 WL 3168395, at *3 (citing BMC Software Belg., N.V. v.

Marchand, 83 S.W.3d 789, 794 (Tex. 2002)).

Risner Did Not Waive His Complaint And Is Not Barred By Laches

      Laches is an equitable remedy that bars a plaintiff from asserting a claim due

to a lapse of time. Bluebonnet Sav. Bank, F.S.B. v. Grayridge Apartment Homes,

Inc., 907 S.W.2d 904, 912 (Tex. App.—Houston [1st Dist.] 1995, writ denied).


                                         22
The party asserting laches must prove two essential elements for laches to bar a

claim: (1) a party’s unreasonable delay in asserting a legal or equitable right; and

(2) a good faith and detrimental change of position by another because of the

delay. Green v. Parrack, 974 S.W.2d 200, 203–04 (Tex. App.—San Antonio

1998, no pet.).

      Here, Salazar filed her application on December 6, 2013. Risner brought his

petition for temporary and permanent injunction on January 21, 2014.            The

deadline for challenging Salazar’s application was February 17, 2014. See TEX.

ELEC. CODE ANN. §§ 41.007(a), 85.001(a), (c), 141.034(a).

      Although it may have been possible for Risner to bring his petition sooner,

“he needed a certain amount of time to ascertain the validity of [the] signatures”

and otherwise investigate his case and marshal his evidence. Atkinson v. Carter,

785 S.W.2d 449, 452 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding),

overruled on other grounds sub nom. Carter v. Fourteenth Court of Appeals, 789

S.W.2d 260 (Tex. 1990) (orig. proceeding). Moreover, HCRP and Woodfill did

not file an answer or otherwise raise laches until February 17, 2014—the day they

contend Risner was required to have concluded his challenge to Salazar’s petition.

      Under these circumstances and given that “gathering evidence takes time,”

we cannot conclude that HCRP and Simpson have met their burden of showing

that Risner unreasonably delayed the filing of his petition for an injunction. Id.


                                        23
(“It would be inappropriate to close the courthouse doors simply because gathering

evidence takes time. There is virtually no authority for refusing to enforce the

Election Code because of laches . . . .”).

Salazar’s Application Contained Insufficient Valid Signatures

      A candidate for a place on a primary election ballot for the position of

justice of the peace in Harris County must submit a valid application and either a

filing fee and a petition containing 250 valid signatures or a petition containing 500

valid signatures. See TEX. ELEC. CODE ANN. § 172.021.

      Here, Salazar filed her application on December 6, 2013, three days before

the December 9, 2013 deadline. See id. § 172.023(a). Salazar filed an application,

a filing fee, and petition pages containing 457 signatures.

      At the conclusion of the temporary injunction hearing, the trial court found

that the uncontroverted testimony showed that 305 of the 457 signatures submitted

by Salazar were fraudulent and that 39 of the petition pages submitted with

Salazar’s application were not valid. See id. §§ 141.063, 141.065. Without the

invalid signatures, Salazar’s petition contained less than the requisite 250

signatures necessary to obtain a place on the primary election ballot. The trial

court concluded that Salazar’s petition did not satisfy the requirements of the

Election Code and granted Risner’s request for a temporary injunction, enjoining




                                             24
the HCRP and its chair from certifying Salazar’s name for the November general

election ballot.

      Nevertheless, HCRP and Simpson contend that we “may properly deny

Risner’s injunctive requests because Salazar’s petitions were sufficient.” HCRP

and Simpson argue that Salazar’s original application and petition were free from

any facial defects and facially satisfied all requirements of the election code.

HCRP and Simpson further argue that Salazar’s application was accompanied by

circulators’ affidavits, which also were in facial compliance with the statutes.

HCRP and Simpson therefore conclude that the petitions were sufficient.

      HCRP and Simpson also present a related argument, in which they contend

that the truthfulness of a circulator’s affidavit is strictly a criminal matter and

should not be subject to challenge in a civil injunction proceeding.

      Contrary to HCRP and Simpson’s arguments, section 141.034 of the Texas

Election Code specifically encompasses a challenge to the contents, as opposed to

the form and procedure, of a candidate’s application. Id. § 141.034. Because

adoption of HCRP and Simpson’s construction—wherein neither the party chair

nor a court could consider the veracity of the application, the accompanying

petition, or any of the included affidavits—would render the provision permitting

challenges to the contents of an application meaningless, we do not adopt that

construction. See City of Hous. v. Woolley, 51 S.W.3d 850, 853 (Tex. App.—


                                         25
Houston [1st Dist.] 2001, no pet.) (“We also should not adopt a construction that

would render a law or provision absurd or meaningless.”).

      Further, we must construe the Election Code in light of the objectives sought

to be attained by the code, and “one of the principal purposes behind the Election

Code [is] the prevention of election fraud.” In re Bell, 91 S.W.3d 784, 787 (Tex.

2002) (orig. proceeding); see also TEX. GOV’T CODE ANN. §§ 311.021, 311.023

(West 2013); TEX. ELEC. CODE ANN. § 1.003(a) (West 2010); Woolley, 51 S.W.3d

at 853 (“Our objective in construing a statute is to determine and give effect to the

intent of the lawmaking body.”).

      Accordingly, we conclude that a challenge to a candidate’s application may

result in a review of the truthfulness of the application’s contents. Based on the

trial court’s findings that the circulator’s affidavits contained false statements, that

the petition pages contained fraudulent signatures, and that there were less than

250 valid signatures filed with Salazar’s application, Salazar’s application was

deficient when it was filed and on the December 9, 2013 filing date. See TEX.

ELEC. CODE ANN. §§ 141.032(c), (e), 141.062(a), 141.063(a), 141.065, 172.023(a),

172.029(d).

Salazar Was Not Entitled To An Opportunity To Cure

      Although the trial court found that Salazar’s original application and petition

contained an insufficient number of valid signatures and granted a temporary


                                          26
injunction, the trial court further found that Salazar’s application contained no

facial defects, that neither Salazar nor the HCRP nor its chair had any knowledge

of any issues with Salazar’s application, and that neither Salazar nor the HCRP nor

its chair engaged in any fraud or misconduct or knowing violation of law. The trial

court also concluded, as a matter of law, that section 141.032(g) of the Election

Code did not preclude the trial court from granting equitable relief to Salazar. The

trial court therefore abated the case and afforded Salazar an opportunity to cure her

defective application.

      In his brief, Risner argues that the trial court abused its discretion by

granting Salazar an opportunity to cure her petition.

      The Election Code Prohibits Amendments to Petitions After the Filing
      Deadline

      Prior to 2011, the Texas Election Code neither specifically authorized nor

specifically prohibited amendments to applications for positions on a ballot after

the filing deadline for such applications. Instead, the Code merely required that a

candidate’s application “be timely filed with the appropriate authority.” TEX.

ELEC. CODE ANN. § 141.031(a)(3). The Code further required a party chair to

review the application within either five days or “as soon as practicable,” to reject

any non-compliant application, and to immediately notify the candidate of the

reason for the rejection. Id. § 141.032(a), (b), (c), (e).



                                           27
      In In re Gamble, In re Francis, and In re Holcomb, the Texas Supreme

Court construed the aforementioned statutory provisions, in conjunction with the

statutory authorization in Texas Election Code section 273.081 to grant equitable

relief to persons being harmed by violations of the code, to authorize courts to

grant equitable relief and to allow a candidate whose application contained facial

defects to cure his or her defective application after the filing deadline when the

party chair failed to fulfill his or her statutory obligation to timely review the

application and notify the candidate of the defects.     See In re Holcomb, 186

S.W.3d 553, 555 (Tex. 2006) (orig. proceeding); In re Francis, 186 S.W.3d 534,

541–43 (Tex. 2006) (orig. proceeding); In re Gamble, 71 S.W.3d at 317–19. The

supreme court further stated, however, that such “candidates should have the same

opportunity to cure as they would have had before the deadline passed.” In re

Holcomb, 186 S.W.3d at 555 (emphasis added); see In re Francis, 186 S.W.3d at

541, 542 (“Candidates should have the same opportunity to cure as a proper review

before the filing deadline would have allowed them”; stating that code allows

“party chairs to focus on facial defects and call for correction before the filing

deadline” [emphases added]); In re Gamble, 71 S.W.3d at 318 (“There would be

no purpose to the duty to notify the prospective candidate of defects in his or her

application if the intent was not to allow an opportunity to cure those defects,

particularly if the defects can be corrected before the filing deadline”; “under


                                        28
limited circumstances, statutory deadlines may be extended to correct an official’s

violation of a statutory duty”; and denying relief because “[t]here was no court

decision entitling Judge Gamble to amend his application after the statutory

deadline”). Consequently, the Election “Code and well-established Texas law” did

not, in the absence of a court order, “permit[] a party officer to allow a candidate

who filed a defective application before the filing deadline to amend his

application after the deadline so the party chair can place the candidate on the

ballot.” In re Gamble, 71 S.W.3d at 319 (Baker, J., concurring).

      In 2011, however, the legislature amended section 141.032 of the Election

Code by adding Subsection (g), to state that “a candidate may not amend an

application filed under Section 141.031” and “the authority with whom the

application is filed may not accept an amendment to an application filed under

Section 141.031” after the filing deadline. See Act of May 19, 2011, 82d Leg.,

R.S., ch. 254, § 1, 2011 Tex. Gen. Laws 834, 834 (codified at TEX. ELEC. CODE

ANN. § 141.032(g)).

      When construing a statute, our ultimate goal is to effectuate legislative

intent. See Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893, 901 (Tex. 2010); Marks

v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010). Under the plain

meaning rule, we begin with the text of the statute, and we must determine the

legislature’s intent from the plain meaning of the words chosen “unless there is an


                                        29
obvious error such as a typographical one that resulted in the omission of a word or

application of the literal language of a legislative enactment would produce an

absurd result.” Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.

1999) (internal citations omitted); see also TEX. GOV’T CODE ANN. § 311.011(a)

(West 2013); Fresh Coat, Inc., 318 S.W.3d at 901; Cornyn v. Universe Life Ins.

Co., 988 S.W.2d 376, 378–79 (Tex. App.—Austin 1999, pet. denied).

      After the 2011 amendments, the express, unambiguous terms of section

141.032(g) of the Election Code prohibit a candidate from amending an application

after the filing deadline and prohibit a party chair from accepting such an

amendment. See TEX. ELEC. CODE ANN. § 141.032(g); TEX. GOV’T CODE ANN.

§ 311.016(5) (West 2013) (“‘May not’ imposes a prohibition and is synonymous

with ‘shall not.’”). The statute does not contain an obvious error, and application

of the literal language of the statute does not produce an absurd result. See

Rylander, 6 S.W.3d at 284. Moreover, in the context of the Election Code, the

meaning of the statute is clear: a candidate’s application must be timely filed with

the appropriate authority by the filing deadline and a candidate may only amend

the application during the time period in which the candidate is allowed to file a

new petition. See TEX. ELEC. CODE ANN. § 141.031(a)(3) (requiring candidate to

timely file application), § 141.032(a), (e), (g) (requiring authority with whom

application is filed to review application for compliance with procedures, including


                                        30
timeliness of filing, requiring application not timely filed to be rejected, and

prohibiting amendments to application after filing deadline).         Therefore, the

meaning of the statute—candidates are prohibited from filing, and party chairs are

prohibited from accepting, amendments to applications after the filing deadline—is

clear, and we may not disregard the express terms of the statute. See Gonzales v.

Guilbot, 315 S.W.3d 533, 541 (Tex. 2010) (“Our chief aim is to determine and

give effect to the Legislature’s intent, and where the statutory language is

straightforward, it is determinative.”); Rylander, 6 S.W.3d at 284.

      Further, when interpreting an amendment to a statute, we presume that the

legislature intends to change the law. See Adams v. Tex. State Bd. of Chiropractic

Exam’rs, 744 S.W.2d 648, 656 (Tex. App.—Austin 1988, no writ); Schott v.

Leissner, 659 S.W.2d 752, 754 (Tex. App.—Corpus Christi 1983, writ ref’d n.r.e.).

Here, the statute was amended by House Bill 1135. Nothing in the legislative

history of the bill contradicts the presumption that the legislature intended to

change the law. The analysis of the House Committee Report states that the bill

“amends the Election Code to prohibit a candidate for public office from amending

an application for a place on the ballot . . . and to prohibit the authority with whom

the application or petition is filed from accepting an amendment to the application

or petition after the filing deadline.” House Committee on Elections, Bill Analysis,

Tex. H.B. 1135, 82d Leg., R.S. (2011). In addition, according to the bill analysis


                                         31
of the bill as engrossed, the bill “amends current law relating to an application to

run for political office.” Senate Committee on State Affairs, Bill Analysis, Tex.

H.B. 1135, 82d Leg., R.S. (2011). Because we must presume that the legislature

was aware of the aforementioned case law, which only allowed a candidate to file

an amendment to his or her application for a position on the ballot after the filing

deadline if the candidate obtained a court decision entitling the candidate to file

such an amendment, we conclude that the legislative history, indicating that the

amendment to section 141.032 “amends current law,” supports the presumption

that the legislature intended to change the existing law. See In re Allen, 366

S.W.3d 696, 706 (Tex. 2012) (orig. proceeding) (“We presume that the Legislature

is aware of relevant case law when it enacts or modifies statutes.”); In re Gamble,

71 S.W.3d at 319 (denying relief for candidate seeking to remain on ballot because

“[t]here was no court decision entitling Judge Gamble to amend his application

after the statutory deadline”); Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 301

(Tex. 1990) (“A statute is presumed to have been enacted by the legislature with

complete knowledge of the existing law and with reference to it.”).

      We conclude that the plain meaning of the statute is unambiguous, that the

legislature intended to change the law, and that the legislature enacted subsection

141.032(g) with the intent to prohibit a candidate from filing, and the authority

with whom an application is filed from accepting, an amended application for a


                                        32
place on the ballot after the statutory filing deadline. As a result, we construe

subsection 141.032(g) to prohibit the trial court from granting a candidate an

opportunity to file an amended application and from requiring a party chair to

accept an amended application after the filing deadline. See In re Wilson, 421

S.W.3d 686, 689 (Tex. App.—Fort Worth 2014, orig. proceeding) (denying

petition for writ of mandamus to compel chair of Tarrant County Democratic Party

to include candidate’s name on ballot and stating that “it appears that the

legislature has foreclosed the opportunity to cure any defects in an application or

petition discovered after the filing deadline”).

       Accordingly, the trial court erred when it held, as a matter of law, that

Salazar was entitled to an opportunity to cure her defective application after the

filing deadline had passed.2

      Salazar Was Not Entitled To An Opportunity To Cure Her Application

      Moreover, even if subsection 141.032(g) did not prohibit the filing of an

amendment to an application after the filing deadline, Salazar would not be entitled

to equitable relief under prior law. The Texas Supreme Court held, before section

141.032 was amended, that equitable relief is available and a candidate might be


2
      Because the Election Code makes the petition part of the application, section
      141.032(g) prohibits the filing of an amendment to a petition as well as the filing
      of an amendment to the application page itself. TEX. ELEC. CODE ANN.
      § 141.032(c), (g) (West Supp. 2014); see also In re Angelini, 186 S.W.3d 558, 560
      (Tex. 2006) (orig. proceeding).
                                          33
given an opportunity to cure a defective application when (1) the party chair fails

to comply with his or her statutory duty to timely review the application, reject the

application, and promptly notify the candidate of the reason for the rejection,

(2) the defects consist of facial defects, and (3) the candidate could have cured the

defects before the filing deadline if the party chair had complied with his or her

statutory duties. See In re Francis, 186 S.W.3d at 541–43; see also In re Angelini,

186 S.W.3d at 560 (likewise holding, prior to amendment of section 141.032, “that

defective filings could be remedied after the filing deadline to correct a party

official’s violation of a statutory duty” [emphasis added]); In re Holcomb, 186

S.W.3d at 555; In re Gamble, 71 S.W.3d at 318. The supreme court limited the

right to equitable relief to the situation involving facial defects in an early-filed

application, wherein a potential candidate could correct the defects prior to the

filing deadline if the party chair timely reviewed the application and notified the

candidate of the defect. See In re Francis, 186 S.W.3d at 542–43. The court also

specifically held that equitable relief “does not reach forgery, fraud, or other non-

accidental defects discoverable only by independent investigation.” Id.

      Here, the trial court found that Salazar’s application, including the petition,

was not facially defective. As a result, neither the HCRP nor Woodfill was

required to reject Salazar’s application; rather, Woodfill was entitled to treat each

signature on Salazar’s petition as valid, because her petition contained affidavits


                                         34
that facially complied with Texas Election Code section 141.065(a). See TEX.

ELEC. CODE ANN. § 141.065(b). The application was not improperly accepted by

Woodfill and the HCRP. It was only after Risner conducted an independent

investigation and filed a challenge to Salazar’s application that the forged

signatures and the fraudulent circulators’ affidavits were discovered. Thus, the

HCRP and Woodfill did not fail to timely discover any facial defects in Salazar’s

application and notify her of such defects, because there were no facial defects in

the application. Instead, this case falls within the first limitation the Supreme

Court of Texas identified in In re Francis: this case concerns forgery, fraud, or

other non-accidental defects discoverable only by independent investigation. 186

S.W.3d at 542.

      “[C]andidates must bear ultimate responsibility for filing a proper

application and petition.” Id. at 541. Neither the HCRP nor Woodfill failed to

abide by their statutory obligations in this case.      And, although Salazar was

unaware of the untruthful statements contained in her petitions, she is responsible

for the contents of her application. See id. at 543 (holding that availability of

limited opportunity to cure “does not absolve candidates of the need for diligence

and responsibility in their filings; party chairs must only notify them of defects, not

do their work for them”); Escobar v. Sutherland, 917 S.W.2d 399, 405 (Tex.

App.—El Paso 1996, orig. proceeding) (“[I]n the end, it is the candidate who must


                                          35
insure that the application complies with established law. If the candidate does

not, he is at risk of having his candidacy rejected; if not by the County Chair, then

by the courts.”). Accordingly, we hold that the trial court erred when it concluded,

as a matter of law, that Salazar was entitled to an opportunity to cure her

application.

      Risner Did Not Waive His Objection To The Opportunity To Cure

      In her response brief, Salazar argues that Risner waived his objection to the

trial court’s order granting her an opportunity to cure her petition, because he did

not file any objections by the May 16, 2014 deadline imposed by the trial court.

      In its order granting a temporary injunction, the trial court abated the lawsuit

and granted Salazar an opportunity to cure her defective petition pages by seeking

new signatures. In the order, the trial court granted Risner leave to file any

objections to the newly-obtained signatures by May 16, 2014. In other words, the

trial court required Risner to file any challenges to Salazar’s amended petition

pages by May 16, 2014. The trial court’s order did not impose an obligation on

Risner to object to the trial court’s abatement and granting of an opportunity to

cure by May 16, 2014.

      Further, Risner objected to the admission of the new petition pages when

they were offered at the hearing on the permanent injunction, and he timely

appealed from the trial court’s final judgment, wherein the trial court granted


                                         36
Salazar’s request for an opportunity to cure her defective application.         We

conclude that Risner did not waive his objection to the trial court’s order granting

Salazar’s claim for relief. See TEX. R. APP. P. 33.1

Salazar’s Application Did Not Meet The Statutory Requirements

      Salazar’s application, as of the December 9, 2013 filing deadline, did not

contain the 250 valid signatures required by statute. See TEX. ELEC. CODE ANN.

§ 172.021(e). Salazar was not entitled to an opportunity to cure her application

after the deadline, and her application must therefore be evaluated without the

amended petition pages.        Without the amended petition pages, Salazar’s

application did not meet the statutory requirements for a valid application. See id.

§ 172.021(a), (e).

Risner Is Entitled To Injunctive Relief

      Because her application did not satisfy the statutory requirements for a valid

application, Salazar’s name appeared on the Harris County Republican Party’s

primary election ballot in violation of the Election Code, and, should Salazar’s

name be certified for inclusion on the November general election ballot, her name

would appear on the November 2014 general election ballot in violation of the

Election Code. See TEX. ELEC. CODE ANN. §§ 141.031, 141.032(c), (d), 141.062,

141.063, 141.065, 172.021(a), (e), 172.029(d). Risner, the Democratic nominee

for Harris County Justice of the Peace, Precinct 2, Place 2, is in danger of being


                                          37
harmed by this violation by having to face an opponent who would be on the ballot

in violation of the code. Risner has no adequate remedy at law to redress this

injury other than a permanent injunction.

      The trial court granted temporary injunctive relief but denied Risner’s

request for a permanent injunction based on Salazar’s amendment to her petition

pages. But the trial court erred by granting Salazar an opportunity to cure and by

considering her amendment to her application, and, under Texas Election Code

section 273.081, Risner is entitled to permanent injunctive relief. Under these

circumstances, the trial court had no discretion to deny Risner’s petition for a

permanent injunction, and it abused its discretion by doing so. See Terramar

Beach Cmty. Ass’n, 25 S.W.3d at 848.

                                   Conclusion

      Based on the foregoing, we reverse the judgment of the trial court and render

judgment granting Risner’s request for a permanent injunction and enjoining the

Harris County Republican Party and its chairman, Paul Simpson, from certifying

Leonila Salazar’s name for inclusion on the November 2014 general election ballot

as the Republican nominee for the office of Harris County Justice of the Peace,

Precinct 2, Place 2.

      We dismiss any pending motions as moot. We direct the Clerk of this Court

to issue the mandate immediately. See TEX. R. APP. P. 18.1(c).


                                        38
      Because of the time constraints on this action, we will entertain no motion

for rehearing.




                                            Evelyn V. Keyes
                                            Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Chief Justice Radack dissenting without opinion.




                                       39
