in Re Marcelino Rodriguez, Donna Jean Forgas, and Linda Marie Wiltz Gilmore

• Court: Court of Appeals of Texas
• Decided: March 27, 2013
• Docket: 09-13-00115-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00115-CV ____________________

IN RE MARCELINO RODRIGUEZ, DONNA JEAN FORGAS, AND LINDA MARIE WILTZ GILMORE

_______________________________________________________ ______________

Original Proceeding ________________________________________________________ _____________

ORDER

On March 18, 2013, we granted mandamus relief, holding “that the election

scheduled for May 11, 2013, is to be conducted using the redistricting map adopted

February 21, 2013[]” and ordering respondent, Beaumont Independent School

District (BISD), “to accept relators’ applications and place their names on the

ballot, or to otherwise certify the election of unopposed candidates to the extent

authorized by the Election Code and the Education Code.” See In re Rodriguez,

No. 09-13-00115-CV, 2013 WL 1189005, at *6 (Tex. App.—Beaumont Mar. 18,

2013, orig. proceeding). To expedite a final decision in view of the upcoming

1 election, we ordered that no motion for rehearing would be permitted. Id. On

March 26, 2013, BISD filed a motion for temporary relief pursuant to Rule 52.10

of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 52.10 (“The relator

may file a motion to stay any underlying proceedings or for any other temporary

relief pending the court’s action on the petition.”). In this motion, BISD seeks to

stay further enforcement of this Court’s judgment of March 21, 2013, “while

[BISD] obtains federal preclearance of the election changes and while this matter

is reviewed by the Texas Supreme Court.”

In the mandamus proceeding, the record reflected that the February 21, 2013

map had been submitted to the Department of Justice for preclearance. Assuming

preclearance, we ordered that map to be used for the upcoming election.

Rodriguez, 2013 WL 1189005, at *6. BISD has not suggested, either in this

proceeding or in a related proceeding, that the Department of Justice has expressed

any objection to that map. See id.; see also In re Jones, No. 09-13-00107-CV

(Tex. App.—Beaumont Mar. 18, 2013, orig. proceeding). In the related

proceeding, BISD stated “this Court has the power to extend the statutory deadline

in which to adopt the 7/0 redistricting map.” Brief of Respondent at 10, In re

Jones, No. 09-13-00107-CV. BISD presents information to the Court in this

proceeding that on March 19, 2013, this Court’s opinion and judgment of March

2 18, 2013 were submitted for preclearance, which we assume is also expedited.

BISD implicitly argues that we worked a change in state law by granting equitable

relief to extend the deadline under state law to allow BISD to use the map for

which BISD had already requested preclearance. However, the exercise of our

equitable power to extend the deadline did not work a change in state law. See In

re Gamble, 71 S.W.3d 313, 318 (Tex. 2002) (a court may order equitable relief

from certain Election Code deadlines).

The question is whether an election practice constitutes a change with

respect to voting. Riley v. Kennedy, 553 U.S. 406, 421, 128 S.Ct. 1970, 170

L.Ed.2d 837 (2008). Our opinion applied statutes that have long been in effect.

See Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, 1995 Tex. Gen. Laws 2207,

2224-25 (Tex. Educ. Code Ann. §§ 11.052-.053 (West 2012); see also Tex. Elec.

Code Ann. § 3.007 (West 2010)). No party has claimed that the statutes at issue

here were not precleared and in force and effect. Riley, 553 U.S. at 421 (“The

question is whether a State has enacted or is seeking to administer a practice or

procedure that is different enough from the baseline to qualify as a change.”

(internal quotations omitted)). Our holding that the existing statutes apply to the

election did not work a change with respect to voting. See Hathorn v. Lovorn, 457

U.S. 255, 270 n.24, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982) (“Our holding does not

3 prevent state courts from attempting to accommodate both state and federal

interests.”).

BISD cites Hathorn v. Lovorn as authority for this Court to stay enforcement

of our judgment. See id. “When a party to a state proceeding asserts that § 5 [of

the Voting Rights Act of 1965] renders the contemplated relief unenforceable, . . .

the state court must examine the claim and refrain from ordering relief that would

violate federal law.” Id. 457 U.S. at 269-70. The parties have indicated to this

Court that they are pursuing preclearance; consequently, we perceive no reason to

order the parties to do so. See id. 457 U.S. at 270 n.24 (a state court may order the

parties to submit the proposed relief to the Attorney General, and if the Attorney

General registers an objection, the court may order the parties to seek declaratory

relief in the District Court for the District of Columbia).

Accordingly, the motion is denied.

ORDER ENTERED March 27, 2013.

PER CURIAM

Before McKeithen, C.J., Gaultney and Horton, JJ.