in Re Robert Tejeda ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
CONCURRING OPINION
No. 04-22-00026-CV
IN RE Robert TEJEDA
Original Mandamus Proceeding 1
Concurring opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: January 14, 2022
On January 11, 2022, Relator the Honorable Robert Tejeda filed a petition for writ of
mandamus challenging a January 6, 2022 trial court order enjoining Bexar County Democratic
Party Chair Monica Alcantara and Bexar County Elections Department Administrator Jacquelyn
F. Callanen from any attempt to disqualify Real Party in Interest Sylvia Ruiz Mendelsohn as a
candidate in the 2022 Democratic Primary. Relator also filed an emergency motion for temporary
relief to stay the trial court’s order. We granted Relator’s emergency motion and issued a stay.
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This proceeding arises out of Cause No. 2021-CI-25811, styled Sylvia Ruiz Mendelsohn v. Monica Alcantara and
Jacquelyn F. Callanen, in the 37th Judicial District Court, Bexar County, Texas, the Honorable John D. Gabriel Jr.
presiding. The petition identifies the trial court judge as respondent, and Alcantara and Callanen as real parties in
interest. Relator styles his petition for writ of mandamus: “In re Monica Alcantara and Jacquelyn F. Callanen ex rel.
Robert Tejeda, Justice of the Peace, Precinct 1, Place 1, Bexar County.” Ex rel. is short for Ex relatione, which is
Latin for “by or on the relation of.” State ex rel. Balderas v. Real Estate Law Ctr., P.C., 430 F. Supp. 3d 900, 928
(D.N.M. 2019) (quoting BLACK’S LAW DICTIONARY (11th ed. 2019)). Relator does not explain his authority to bring
a mandamus proceeding in the name of Alcantara or Callanen; therefore, I treat this mandamus proceeding as his own.
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On January 13, 2022, we vacated the stay and denied Relator’s petition. Today, we issue a per
curiam opinion. See TEX. R. APP. P. 52.8(a), (d). I write separately to state my reasons for denial.
BACKGROUND
On December 9, 2021, Mendelsohn filed an application to be placed on the primary ballot
as a candidate for Bexar County Justice of the Peace, Precinct 1, Place 1. On December 12 and
13, 2021, officials from the Bexar County Democratic Party notified Mendelsohn that her
application would be rejected. On December 14, 2021, Mendelsohn received an email from the
Texas Secretary of State, notifying her that her application was rejected.
On December 20, 2021, Mendelsohn filed an original petition and application for
temporary and permanent injunction against Bexar County Democratic Party Chair Alcantara and
Bexar County Elections Department Administrator Callanen. Mendelsohn sought an injunction
requiring the party and election officials to approve her application for candidacy for Justice of the
Peace, Precinct 1, Place 1 on the 2022 Democratic Primary and for placement on the ballot. On
December 27, 2021, the trial court granted Mendelsohn a temporary injunction after an evidentiary
hearing, and on January 6, 2022, the trial court granted Mendelsohn a permanent injunction, after
another evidentiary hearing.
Relator is the incumbent Justice of the Peace for Precinct 1, Place 1. On January 11, 2022,
he filed a mandamus petition, seeking a writ directing the trial court to vacate its January 6, 2022
order. Relator also filed an emergency motion to stay the trial court’s final order, asserting that
Callanen had indicated her intent to start printing ballots on January 13, 2022. Mendelsohn
responded in opposition to the petition and the emergency motion. On January 11, 2022, we
ordered a stay of the trial court’s order, pending our review. On January 13, 2022, we vacated the
stay and denied Relator’s petition.
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ENTITLEMENT TO MANDAMUS RELIEF
In election disputes, mandamus proceedings may arise from litigation that starts in the
district court, or the mandamus proceedings may have no connection to any trial court proceedings.
See In re Woodfill, 470 S.W.3d 473, 481 (Tex. 2015) (orig. proceeding) (per curiam); Anderson v.
City of Seven Points, 806 S.W.2d 791, 792 n.1 (Tex. 1991) (orig. proceeding) (per curiam). A
petition seeking mandamus relief must state, without argument, the basis of our jurisdiction. TEX.
R. APP. P. 52.3(e); see also TEX. CONST. art. V, § 6 (providing that authority for courts of appeals
in original writ proceedings is limited to the “restrictions and regulations as may be prescribed by
law”).
Relator cites Election Code sections 161.009 and 273.061 as bases for our authority. These
statutes authorize mandamus proceedings in our court unconnected to any district court
proceedings. See In re Woodfill, 470 S.W.3d at 481 (recognizing the Election Code authorizes
mandamus proceedings to “originate in the appellate courts”). This statutory authorization allows
us to issue writs of mandamus “to compel the performance of any duty imposed by law in
connection with the holding of an election or a political party convention, regardless of whether
the person responsible for performing the duty is a public officer.” TEX. ELEC. CODE ANN.
§ 273.061(a); see also id. § 161.009 (“The performance of a duty placed by this code on an officer
of a political party is enforceable by writ of mandamus in the same manner as if the party officer
were a public officer.”). Under these authorizations, we may issue writs directed at party chairs
or election administrators for failure to perform ministerial acts, including the act of rejecting a
ballot application that is defective on its face. See In re Triantaphyllis, 68 S.W.3d 861, 869 (Tex.
App.—Houston [14th Dist.] 2002, no pet.) (orig. proceeding); see also In re Perez, 508 S.W.3d
500, 508 (Tex. App.—El Paso 2016, no pet.) (orig. proceeding) (conditionally granting writ of
mandamus to compel party official to remove name from ballot because public records
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conclusively established prospective candidate was not a registered voter in the territory from
which the office would be elected); In re Walker, 595 S.W.3d 841, 843 (Tex. App.—Houston [14th
Dist.] 2020, no pet.) (orig. proceeding) (citing In re Perez to reach similar result).
Relator, however, does not pursue a writ to compel the performance of a ministerial duty
by a party official or election administrator. Instead, he seeks a writ to compel the trial court to
vacate an injunction. Only indirectly would a writ directed against the trial court judge allow the
performance of any purported ministerial duty held by Alcantara or Callanen. In all events, our
writ would not “compel” a party or election official when the officials here would have acted in
Relator’s benefit but for the trial court’s injunction. Indeed, Alcantara and Callanen opposed the
trial court’s injunction at two hearings before the trial court and through district court filings.
Relator has not directed us to any authority to establish that our power to issue writs pursuant to
the Election Code would permit us to issue a writ directed at a trial court judge that would have
only indirect effects on party and election officials.
Relator also cites Texas Government Code section 22.221(b)(1) as a basis for our
jurisdiction. Section 22.221(b)(1) provides that we “may issue all writs of mandamus, agreeable
to the principles of law regulating those writs, against . . . a judge of a district.” See TEX. GOV’T
CODE ANN. § 22.221(b)(1). These principles of law establish that “[a] writ of mandamus is an
extraordinary remedy available to correct an action of a trial judge who commits an abuse of
discretion or a violation of a clear duty under the law.” State v. Naylor, 466 S.W.3d 783, 793 (Tex.
2015) (citation omitted). To obtain a writ against a trial judge, a relator must show both that the
trial court has clearly abused its discretion and that the relator has no adequate appellate remedy.
In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Moreover,
“[a]s a rule, mandamus is not available to compel an action which has not first been demanded and
refused.” Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991).
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Relator was not a party before the trial court and is not subject to the trial court’s order.
He did not intervene when the case was before the district court, and he never demanded the trial
court deny Mendelsohn’s injunction request. Mendelsohn filed her original petition on December
20, 2021. The trial court held two hearings on the matter, and, on January 6, 2022, it entered a
final order. The order states: “This is a final Order by the Court and is appealable. All relief not
granted is denied.” An appeal may be taken from a final judgment. Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 195 (Tex. 2001). However, the right to appeal is generally limited to the parties
of record. See Naylor, 466 S.W.3d at 789. Relator filed a petition for writ of mandamus seeking
extraordinary relief. Relator did not intervene to secure a right to direct appeal, which precludes
a remedy by appeal and, under the circumstances, extraordinary mandamus relief. See id. at 794
n.7 (finding unpersuasive argument that mandamus relief was warranted because State failed to
timely intervene to secure a right to direct appeal); Herring v. Houston Nat. Exch. Bank, 113 Tex.
337, 351 (1923) (orig. proceeding) (“[A] writ of injunction or prohibition will lie only in cases of
manifest necessity and after fruitless efforts for relief in the inferior tribunal[.]”).
For these reasons, Relator has not shown he is entitled to extraordinary mandamus relief.
Rebeca C. Martinez, Chief Justice
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