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JAMES G. BRANAUM v. KAE THOMAS PATRICK (10/20/82)

October 20, 1982

JAMES G. BRANAUM, APPELLANT,
v.
KAE THOMAS PATRICK, APPELLEE



Appeal from Bexar County.

COUNSEL

Barrett Moursund, San Antonio, Texas, For Appellant.

Tom Joseph, San Antonio, Texas, For Appellee.

Antonio G. Cantu, Associate Justice.

Author: Cantu

ANTONIO G. CANTU, ASSOCIATE JUSTICE

AFFIRMED.

This is an appeal from a take-nothing judgment rendered in a suit brought under Chapter 14 of the Texas Election Code. TEX. ELEC. CODE ANN. art. 14.04 (Vernon Supp. 1981).

Appellant, a candidate in the Republican primary of 1980, brought suit against appellee, also a candidate in the same primary, to recover civil penalties for alleged violations of the Election Code.

Appellant, in his first amended original petition, alleged that appellee violated article 14.02(I)*fn1 by making and accepting a campaign contribution by loaning $400.00 to his campaign, and by making a campaign expenditure by paying a $400.00 filing fee, without first timely filing a designation of campaign treasurer. Appellant then prayed for $1,600.00, double the amount of both the unlawful contribution and of the unlawful expenditure. Appellant further prayed for reasonable attorney's fees, costs of court, and for any other relief as the court might deem just.

Appellant filed his motion for summary judgment alleging that appellee made and accepted a campaign contribution as defined in article 14.01(D) and a campaign expenditure as defined in article 14.01(E) on January 31, 1980. Appellee filed a designation of campaign treasurer for the primary election on February 7, 1980. Appellant alleged that under article 14.02(F) (1)*fn2 the contribution and expenditure made on January 31, 1980 was illegal because no designation of campaign treasurer had been filed with the appropriate authority at that time. Thus, under article 14.04(A), according to appellant, appellee was civilly liable to each opposing candidate whose name appeared on the ballot.

Appellee also moved for summary judgment contending that Vita Mayo was his treasurer from February, 1978, through February 6, 1980, when his new campaign treasurer was designated. Exhibit A to Appellee's motion for summary judgment was a copy of the Candidate's Sworn Statement of Contributions and Expenditures filed on the last occasion required by State law after the November 197, general election. Appellee alleged that at the time he filed this statement he had the option of designating it as a final return and thereby terminate his designation of the existing campaign treasurer, or considering such report an interim report and thereby retain the designation of the existing campaign treasurer. He claims he chose the latter. Appellee asserts that Vita Mayo's term terminated on February 6, 1980, when a new treasurer was designated. Appellee further counter-claimed against the appellant for violations of the Election Code. The record does not indicate that these motions for summary judgment were ever heard. A trial on the merits, however, was had on November 24, 1980, before the Court. Appellant testified at the trial and during cross-examination, over objection, was asked how he was damaged by the designation of a treasurer on the 7th of February. Appellant responded

A: Damage in the fact that money was spent specifically against a given candidacy ...


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