Jane Nelson, in Her Official Capacity as Texas Secretary of State v. True Texas Project, Texans Uniting for Reform and Freedom, Grassroots America - We the People, Julie McCarty, Terri Hall, and JoAnn Fleming

• Court: Court of Appeals of Texas
• Decided: January 25, 2024
• Docket: 07-23-00031-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00031-CV

JANE NELSON, IN HER OFFICIAL CAPACITY AS TEXAS SECRETARY OF STATE, APPELLANT

V.

TRUE TEXAS PROJECT, TEXANS UNITING FOR REFORM AND FREEDOM, GRASSROOTS AMERICA - WE THE PEOPLE, JULIE MCCARTY, TERRI HALL, AND JOANN FLEMING, APPELLEES

On Appeal from the 53rd District Court Travis County, Texas Trial Court No. D-1-GN-21-006656, Honorable Lora J. Livingston, Presiding

January 25, 2024 OPINION 1 Before QUINN, C.J., and PARKER and DOSS, JJ.

Jane Nelson, in her official capacity as Texas Secretary of State, appeals the trial

court’s order denying her plea to the jurisdiction in an election contest filed by True Texas

Project, Texans Uniting for Reform and Freedom, Grassroots America – We the People,

1 The Supreme Court transferred this appeal from the Third Court of Appeals. Thus, we are bound by the latter’s precedent when conflicting with ours. TEX. R. APP. P. 41.3 Julie McCarty, Terri Hall, and Joann Fleming, collectively referred to as McCarty. We

affirm.

Background

The substance of the election contest focuses on the ballot language used to

identify and describe a proposed constitutional amendment allowing counties to fund

various projects. Voters rejected a like proposition years earlier. The subject was again

put to a vote in November 2021. This time the ballot described the amendment as follows:

“The constitutional amendment authorizing a county to finance the development or

redevelopment of transportation or infrastructure in unproductive, underdeveloped, or

blighted areas in the county.” It met with voter approval. Nevertheless, McCarty initiated

this election contest to nullify the vote.

McCarty sued because the November 2021 ballot allegedly was “incomplete,

inaccurate, and did not adequately describe what the electorate was actually voting on.”

This was so, in her view, because ballot language failed to include all chief characteristics

of the proposed constitutional amendment. That led to Nelson’s filing her plea to the trial

court’s jurisdiction and the trial court’s subsequent rejection of that plea.

Before us, Nelson contends that the doctrines of separation of powers and political

question bar the trial court from adjudicating the controversy. The topic of standing has

also been broached, for the first time. It relates solely to True Texas Project, Texans

Uniting for Reform and Freedom, and Grassroots America – We the People (the

organizations). Allegedly, they lack standing to prosecute the contest under § 233.002 of

the Election Code.

2 Separation of Powers

We begin with separation of powers. Our Texas Constitution states that “the

powers of the Government of the State of Texas shall be divided into three distinct

departments . . . and no person, or collection of persons, being of one of these

departments, shall exercise any power properly attached to either of the others, except in

the instances herein expressly permitted.” TEX. CONST. art. II, § 1. The three

“departments” are the executive, legislative, and judicial. Id. Yet, the separation alluded

to does not denote absolute independence between the branches but, rather, a degree

of interdependence to foster a workable government. See Tex. Comm’n on Envtl. Quality

v. Abbott, 311 S.W.3d 663, 672 (Tex. App.—Austin 2010, pet. dism’d) (quoting Bd. of Ins.

v. Betts, 309 S.W.2d 846 (Tex. 1958) (orig. proceeding)). This is so because not every

governmental power necessarily fits logically and clearly into any particular branch or

department. Id. at 671. Thus, coordination and cooperation among the branches is both

usual and expected. Betts, 308 S.W.2d at 852.

But, interdependence is exceeded and the powers of the other are transgressed

when 1) one branch assumes, or is delegated, a power that is more properly attached to

another or 2) one branch unduly interferes with another so that the other cannot effectively

exercise its constitutionally assigned powers. Abbott, 311 S.W.3d at 672 (quoting Jones

v. State, 803 S.W.2d 712, 715–16 (Tex. Crim. App. 1991) (en banc)). Assessing whether

this occurs in a particular situation entails the application of a two-step test. Id. The first

step focuses on the scope of the assigned power, while the second assesses the impact

of the act in question upon that power’s exercise. Id. We conclude that a court’s

adjudicating whether a constitutional proposition as written on a ballot violates neither

step. 3 First, per our Texas Constitution, “[t]he Legislature . . . may propose amendments

revising the Constitution, to be voted upon by the qualified voters for statewide offices

and propositions, as defined in the Constitution and statutes of this State,” and “[t]he date

of the elections shall be specified by the Legislature.” TEX. CONST. art. XVII, § 1(a). The

following section states that a “brief explanatory statement of the nature of the proposed

amendment, together with the date of the election and the wording of the proposition as

it is to appear on the ballot, shall be published twice in the newspaper in each newspaper

in the State which meets requirements set by the Legislature for the publication of official

notices of officers and departments of the state government.” Id. art. XVII, § 1(b). The

“explanatory statement shall be prepared by the Secretary of State and . . . approved by

the Attorney General.” Id. As can be seen, our Constitution vests the legislature with the

power to propose constitutional changes, select the election date on which they will be

considered, and the manner of their publication to the voters. Matters to be so published

in the newspaper are an “explanatory statement of the nature of the amendment,” the

election date, and “the wording of the proposition as it is to appear on the ballot.” And,

that the Constitution leaves drafting the “explanatory statement” to the Secretary of State,

which draft the Attorney General must approve, is informative. Both are part of the

executive branch. Id. art. IV, § 1. And so leaving to the executive branch aspects of the

constitutional amendment process evinces an intended interdependence, as opposed to

an independence, among branches.

Next, we find an omission in article XVII, § 1. Nowhere does it expressly state

who drafts the “wording of the proposition as it is to appear on the ballot.” Nevertheless,

the court from which this appeal originated has held that our “Constitution has vested in

the legislature a discretion as to the form in which constitutional amendments may be 4 proposed and submitted.” Whiteside v. Brown, 214 S.W.2d 844, 850 (Tex. Civ. App.—

Austin 1948, writ dism’d w.o.j.). It made that statement in the context of submitting the

amendment to the general public for approval and assessing the sufficiency of the ballot

language. Id. at 849 (describing the issues for review as whether “(1) that ballot was in

the form of one amendment . . . ; and (2) the ballot used did not contain a sufficient

description of the proposed amendment”). Given Whiteside, its context, and its binding

nature upon us per Texas Rule of Appellate Procedure 41.3, we cannot but say that

drafting the proposition to appear on the ballot is a power left by our Constitution to the

legislature’s discretion. Simply put, it has the discretion to select the words it cares to

submit for consideration by the electorate.

Then again, the legislature decided it need not be the sole branch of government

under the Constitution to exercise that discretion. This decision was manifested in the

Texas Election Code. There, it wrote that a member of the executive branch, i.e., the

Texas Secretary of State, could perform the act in its stead. See TEX. ELEC. CODE ANN.

§ 274.001(a) (stating that “[i]f the legislature fails to prescribe the wording of the

proposition submitting a proposed constitutional amendment, the secretary of state shall

prescribe it”). If nothing else, this too evinces a desire for an interdependence between

governmental departments.

Of further note about Whiteside, it did not forbid the judiciary from assessing the

sufficiency of ballot language despite the legislature having discretion to draft it. Rather,

the panel applied a test by which adequacy could be measured. That test emanated from

the predecessor to § 274.001 of the Election Code. It provided that “[w]hen a proposed

constitutional amendment . . . is to be voted on, the form in which it is submitted, if the

Legislature has failed to prescribe the same, shall be prescribed by the Governor . . . 5 describing the same in such terms as to give a clear idea of the scope and character

of the amendment in question.” Whiteside, 214 S.W.2d at 851 (quoting TEX. REV. CIV.

STAT. ANN. art. 2982 (emphasis added). 2 Though the Whiteside court observed that the

highlighted test, “strictly speaking,” did not actually control the outcome of the case

because the legislature wrote the ballot language, the court nonetheless applied it. Id.

And, utilizing it as a component of the sufficiency equation is another instance of

governmental branches (this time, the judiciary) endeavoring to work interdependently

when it came to elections concerning the amendment of our Constitution.

Whiteside was not the lone instance of the judiciary’s involving itself in the analysis

of ballot language in referendums to amend the Constitution. That also occurred in Hardy

v. Hannah, 849 S.W.2d 355 (Tex. App.—Austin 1992, writ denied). Indeed, our Supreme

Court did so as well in Railroad Comm’n of Tex. v. Sterling Oil & Refining Co., 147 Tex.

547, 218 S.W.2d 415 (Tex. 1949). Those courts having insinuated themselves into the

discussion is persuasive for another reason. Simply put, they, like every court, were

obligated to sua sponte determine whether jurisdiction existed to adjudicate the dispute.

See Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 70–71 (Tex. 2021). As the

Haynes court said, “[a]lthough the parties do not raise this issue, we must consider it sua

sponte when our jurisdiction seems in doubt.” By adjudicating the dispute before them,

one can say, the Third Court of Appeals and Texas Supreme Court had no doubt about

their jurisdiction to act.

2 Today’s corollary is found in the Election Code. In providing for the Secretary of State to draft the

language should the legislature not, the verbiage “must describe the proposed amendment in terms that clearly express its scope and character.” TEX. ELEC. CODE ANN. § 274.001(b). 6 One other circumstance warrants attention. It too concerns an act of the legislature

evincing intent to invite the judiciary into this constitutional fray. We find it in § 233.014(g)

of the Texas Election Code. Through it, the legislature directed that “[a]ny question

relating to the validity or outcome of a constitutional amendment election may be raised

in an election contest.” TEX. ELEC. CODE ANN. § 233.014(g). “Any question” is quite a

borderless term. It hardly denotes some intent to differentiate between the disputes

subject to adjudication. One can also reasonably view it as another example of intent to

foster the interdependence among the branches alluded to earlier.

The question posed by Nelson has no easy, quick answer. Yet, the indicia

discussed above provide guidance. They lead us to conclude that the separation of

powers doctrine does not stay the judiciary’s hand in this case. When it comes to ballot

language, there is interdependence between the judiciary and legislature, as opposed to

the strict independence proposed by Nelson.

Political Question

The same is no less true regarding the political question doctrine. The latter is

primarily a function of the separation of powers. Am. K-9 Detection Servs., LLC v.

Freeman, 556 S.W.3d 246, 253 (Tex. 2018) (quoting Baker v. Carr, 369 U.S. 186, 82 S.

Ct. 691, 7 L. Ed. 2d 663 (1962)).

As said above, drafting the ballot language falls within the constitutional powers of

the legislature, according to Whiteside. Yet, again, the particular power is not expressly

mentioned in the Texas Constitution. This is of import for a lack of textually demonstrable

constitutional commitment of the issue to a coordinate branch of government is a factor

influencing the applicability of the political question doctrine. Id. at 252–53.

7 That there exists a judicially manageable standard for testing the adequacy of

ballot language also sways against application of the doctrine. See id. (noting that a lack

of judicially discoverable and manageable standards for resolving the question as another

factor). We find that standard most recently iterated in Dacus v. Parker, 466 S.W.3d 820

(Tex. 2015). Per the Supreme Court, the language “must ‘substantially submit[] the

question’ with ‘definiteness and certainty’”; that is, it “must identify the measure by its chief

features, showing its character and purpose.” Id. at 825.

Nor do we find it impossible to test the ballot’s language without first 1) engaging

in policy determinations of a kind clearly reserved to nonjudicial discretion or 2)

expressing disrespect to a coordinate branch of government. See Am. K-9 Detection

Servs., 556 S.W.3d at 252 n.18 (listing these as components of the political question

equation). After all, the test applied likens to that selected by the legislature when

analyzing the sufficiency of ballot language written by the Secretary of State. See Dacus,

466 S.W.3d at 825 (stating that “the ballot must identify the measure by its chief features,

showing its character and purpose” and comparing the test to that provided in § 274.001

of the Election Code). So, to some extent, it can be said that testing the adequacy of the

language follows a path already prescribed by the legislature.

Similarly missing is the need for unquestioning adherence to a political decision

already made or a potential for embarrassment arising from multifarious pronouncements

by various departments on the same question. Those also are factors. Am. K-9 Detection

Servs., LLC, 556 S.W.3d at 252 n.18. We do not see how determining whether language

clearly expresses an amendment’s “scope and character” or “character and purpose,”

whether under § 274.001(b) or Dacus, respectively, constitutes a political decision to

which one must adhere unquestionably. It simply involves the exercise of interpreting 8 words against a designated standard, an exercise in which the judiciary legitimately

engages each day.

We further add into the analysis the fact of the judiciary’s historic involvement in

disputes about ballot language. The legislature’s having done nothing to halt it despite

Whiteside, Hardy, and Sterling Oil indicates that it did not care to retain the question for

itself.

In sum, pertinent indicia do not lean in favor of Nelson’s argument. Thus, we reject

the argument that the political question doctrine bars the judiciary from testing the

sufficiency of ballot language in referendums proposing to alter our Constitution. And,

with that, we overrule issue one.

Facially Valid Claim

By her second issue, Nelson advances a sovereign-immunity claim based on

Abbott v. Mexican Am. Legis. Caucus, Tex. House of Representatives, 647 S.W.3d 681

(Tex. 2022). The latter, according to Nelson, obligates McCarty to proffer a facially valid

claim to pierce the sovereign’s immunity, and McCarty purportedly failed to do so. We

overrule the issue.

Abbott dealt with a declaratory action implicating the constitutionality of a statute.

In addressing whether the trial court erred in denying Governor Abbott’s plea to the

jurisdiction, the Supreme Court said: “Although the UDJA generally waives immunity for

declaratory-judgment claims challenging the validity of statutes, we have held that

‘immunity from suit is not waived if the constitutional claims are facially invalid.’” Id. at

698 (quoting Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)).

This statement is little more than iteration of its earlier holding in Andrade v. NAACP of

Austin, 345 S.W.3d 1 (Tex. 2011). There, the court said that “the Secretary [of State] 9 retains immunity from suit unless the voters have pleaded a viable claim.” Id. at 11. To

determine whether McCarty pleaded such a “viable claim,” we find guidance from Dacus.

In Dacus, the voters were asked to approve an amendment to the Houston city

charter creating a “pay-as-you-go fund.” In assessing whether the ballot sufficiently

explained the amendment, the Supreme Court observed that “[t]he language . . . merely

stated the amendment was ‘Relating to the Creation of a Dedicated Funding Source to

Enhance, Improve and Renew Drainage Systems and Streets.’” Dacus, 466 S.W.3d at

822. Missing, though, was mention that “the drainage charges [were] to be imposed on

benefitting real property owners across the city.” Id. at 826. “Such charges imposed

directly on most residents of Houston [were] a chief feature of the amendment, part of the

amendment’s character and purpose,” according to the court. Id. “Merely stating that a

fund is being established provides little definiteness or certainty about something

important to the people—will they directly pay for it?” Id. “[W]hen the citizens must fund

the measure out of their own pockets, this is a chief feature that should be on the ballot,

and its omission was misleading.” Id. And, due to the omission, the court found the

language deficient. See id. at 829.

We read the foregoing as placing importance on the effect a constitutional

amendment would have on the voter’s pocketbook. Whether it be “Taxation without

representation” or “Should five percent appear too small, be thankful I don’t take it all” 3 or

“There goes the shirt off my back” 4 or “I’m payin’ taxes but what am I buyin’?” 5—each

3 THE BEATLES, Taxman, on REVOLVER (Capitol Records 1966).

4 JOHNNY CASH, After Taxes, on I WOULD LIKE TO SEE YOU AGAIN (Columbia 1978).

5 FRED WESLEY AND THE J.B.’S, I’m Paying Taxes, What Am I Buying?, on DAMN RIGHT I AM

SOMEBODY (People Records 1974). 10 exemplifies the perennial interest of the citizenry in protecting the fruits of their labor from

expropriation by the government. No doubt, a component of a constitutional amendment

enabling the government to further appropriate money from one’s pocket would be a chief

feature of the proposal. It matters not whether the appropriation is certain or a likelihood.

The risk of additional loss made possible by adoption of the amendment remains, and it

is a risk of historical and prime interest to the voting public.

Here, voters were asked to approve a measure containing the following ballot

language: “[t]he constitutional amendment authorizing a county to finance the

development or redevelopment of transportation or infrastructure in unproductive,

underdeveloped, or blighted areas in the county.” As can be seen, nothing was said

about how the “development or redevelopment of transportation or infrastructure” would

be financed or who would fund it. Hidden from view was the ultimate responsibility for

payment and its positioning over the voter’s head like the sword of Damocles. The

constitutional amendment itself illustrated that funding would be through “bonds or notes”

issued by the county; yet, the county would be permitted to pay them through “increases

in ad valorem tax revenues imposed on property in the area.” Authorizing counties to

foist payment of the improvements on property owners likens to the chief feature of the

constitutional amendment found missing from the ballot in Dacus. Its absence from the

ballot here precludes us from holding that McCarty’s claim has no facial validity.

Associational Standing

Through her third and final issue, Nelson asks that we dismiss True Texas Project,

Texans Uniting for Reform and Freedom, and Grassroots America – We the People (the

organizations) as parties from this cause. We deny the request.

11 An election contest is the sole means for adjudicating questions about the validity

or outcome of a constitutional amendment election. TEX. ELEC. CODE ANN. § 233.014(g).

The statute setting forth the mode of that contest also states that “[o]ne or more qualified

voters of the territory covered by an election on a measure may contest the election.” Id.

§ 233.002 (emphasis added). A “qualified voter” is “a person” who 1) is at least 18 years

old, 2) is a United States citizen, 3) is not someone adjudicated to be totally mentally

incapacitated or partially mentally incapacitated without the right to vote, 4) has not been

finally convicted of a felony (save for several inapplicable exceptions), 5) is a resident of

Texas, and 6) is a registered voter. Id. § 11.002(a). McCarty alleged in “Contestant’s

[sic] Original Election Contest” that “Contestants True Texas Project, Texans Uniting for

Reform and Freedom, and Grassroots America — We the People are Texas non-profit

organizations composed of qualified Texas voters.” Describing them as non-profit

organizations comprised of qualified voters as opposed to qualified voters themselves,

McCarty may have displaced the organizations from the category of those allowed to

attack the results of a constitutional amendment election. See Nw. Indep. Sch. Dist. v.

Carroll Indep. Sch. Dist., 441 S.W.3d 684, 691 (Tex. App.—Fort Worth 2014, pet. denied)

(op. on reh’g) (en banc) (holding that a school district is not a “qualified voter” under

§ 233.002). Yet, Nelson did not raise this particular topic below. This causes us to

hesitate.

“When a defendant raises a jurisdictional argument for the first time on appeal,

remand may be appropriate to afford the plaintiff a ‘fair opportunity to address’ the

jurisdictional argument.” Harris Cnty v. Annab, 547 S.W.3d 609, 616 (Tex. 2018). The

rule also applies to disputes involving immunity and its waiver.

12 One generally has a right to amend pleadings when the document fails to allege

enough jurisdictional facts to demonstrate the trial court’s jurisdiction. River City Partners,

Ltd. v. City of Austin, No. 03-19-00253-CV, 2020 Tex. App. LEXIS 4301, at *21–22 (Tex.

App.—Austin June 4, 2020, no pet.) (mem. op.). That right may be lost, though, if the

party received a reasonable opportunity to amend after a governmental entity filed its plea

to the jurisdiction and the amended pleading continues to omit facts illustrating a waiver

of immunity. Id. At this juncture, we cannot say McCarty received such a reasonable

opportunity. Again, it was not afforded below given Nelson’s failure to there complain

about the organizations’ unique inability to prosecute the suit. Consequently, we deem it

appropriate to afford McCarty reasonable opportunity to develop the character of Nelson’s

argument and amend pleadings, if possible, to aver facts establishing jurisdiction. We

see no harm in affording such opportunity given that the cause nevertheless remains

subject to prosecution by the non-organizational plaintiffs.

We affirm the trial court’s order denying the plea to the jurisdiction.

Brian Quinn Chief Justice