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 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 [email protected] 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 First Amended Final Judgment With Permanent Injunction 2 First Amended Final Judgment With Permanent Injunction 5 First Amended Final Judgment With Permanent Injunction 7 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 $ 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 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 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: [email protected] 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 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 Findings of Fact and Conclusions of Law 4 $ 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 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 Susan Heygood McCoy Judge Presiding Findings of Fact and Conclusions of Law 8 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 End of Document r0 '.!017 Thomson Reu1ers. No d:um to original U.S. Government Worb. WESTl..AW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 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 - - -- - - - - - - -- - - - - - - - - - - - -- - - - - - - - - - -·-·•··-·- -·- - - - - - - End of Document e 2017 T homson Renter,. N o claim to original U.S. Government Works. WESTl..AW © 2017 Thomson Reuters. No claim to original U.S. Government Works.