Court of Appeals of Texas, Third District, Austin
PROCEEDING FROM CALDWELL COUNTY
Justices Puryear, Field, and Bourland
Susan "Suzy" Falgout filed a petition for writ of
mandamus and request for emergency relief related to her
application for a place on the Republican primary ballot.
See Tex. R. App. P. 52. On November 16, 2017,
Falgout filed her application to run in the Republican
primary for Justice of the Peace, Pct. 1, of Caldwell County,
accompanied by petitions in lieu of a filing fee. Respondent
and Caldwell County Republican Chair Kathy Haigler accepted
the application on November 17. Real party in interest and
current Justice of the Peace Matt Kiely requested a copy of
Falgout's application and petitions on November 20 and
received a copy that same day. On December 12, Kiely
challenged Falgout's petitions because they did not state
that she was running for the Republican primary as required
by the election code. See Tex. Elec. Code §
172.027. On December 13, Falgout asked for the opportunity to
cure the error, explaining how her petitions came to lack
that required information. Haigler refused to allow Falgout
to cure the error and on December 15 sent Falgout a letter
stating that she had "been instructed by the Secretary
of State that I must now reject your application. This letter
serves as your notice of rejection." Falgout then filed
this emergency proceeding. On December 18, we issued an order
instructing Haigler to allow Falgout to participate in the
December 21 drawing for primary ballot position, pending our
decision on Falgout's petition. See Tex. R. App.
P. 52.10; In re Bell, 91 S.W.3d 784, 785 (Tex.
2002). Having received responses from Kiely and
Haigler and having reviewed the relevant cases and
statutes, as explained briefly below, we deny Falgout's
request for extraordinary relief.
2006, the supreme court allowed a would-be candidate the
opportunity to cure a defect under very similar
circumstances, explaining that the election code did not
require that he be excluded from the ballot after both he and
the party chair overlooked a defect in his petitions until
after the deadline had passed. In re Francis, 186
S.W.3d 534, 542-43 (Tex. 2006) (orig. proceeding). However,
in 2011, the legislature amended the election code to
specifically bar a would-be candidate from amending an
application or an accompanying petition after the filing
deadline. See Tex. Elec. Code §§
141.032(g), .062(c) (added by Act of May 19, 2011, 82d Leg.,
R.S., ch. 254, §§ 1, 2, 2011 Tex. Gen. Laws 834,
834); Risner v. Harris Cty. Republican Party, 444
S.W.3d 327, 434-44 (Tex. App.-Houston [1st Dist.] 2014, no
pet.); In re Wilson, 421 S.W.3d 686, 689 (Tex.
App.-Fort Worth 2014, orig. proceeding). Falgout concedes
as much in her petition, acknowledging that "a petition
must be rejected due to noncompliance with form, content or
procedure" and that "a petition in lieu of filing
fee may not be amended after the filing deadline." She
argues, however, that because an application accompanied by a
rejected petition "can instead be accepted with the
tender . . . of an appropriate filing fee, " we should
interpret the election code as allowing her to tender the fee
after the filing deadline, thus curing the defect in her
petitions. Our reading of the election code does not allow
such an action.
candidate seeking a place on the general primary election
ballot must file an application for a place on the ballot.
Tex. Elec. Code § 172.021(a). The application must be
accompanied by a filing fee or a petition in lieu of filing
fee. Id. § 172.021(b). If the candidate files
an application in lieu of filing fee, "the petition is
considered part of the application, " id.
§ 141.032(c), and as noted above, a candidate may not
amend her application or petitions after the filing deadline,
id. §§ 141.032(g), .062(c).
Falgout is correct that the election code does not explicitly
state that "a filing fee may not be presented or
accepted after the filing deadline, " we do not agree
with her conclusion that the code allows her to pay the fee
after the deadline. The election code provides that if a
candidate submits payment of the filing fee that is returned
for insufficient funds, the application is incomplete and
must be returned. Id. § 172.021(b-1). If the
deadline has not passed, the candidate may resubmit the
application with a new payment from a different source, but
if the payment is returned for insufficient funds after the
deadline has passed, "the application is not considered
to be timely filed, and the authority receiving the
application shall inform the applicant that the application
was not valid." Id. § 172.021(b-1), (b-2).
Reading the applicable provisions of the election code as a
whole and in context with each other, see Service Life
& Cas. Ins. Co. v. Montemayor, 150 S.W.3d 649, 651
(Tex. App.-Austin 2004, pet. denied), we can only conclude
that the legislature intended to bar a candidate from
amending her application in any way after the filing
deadline, including by late filing a fee due to a defect in
the petition filed in lieu of the filing fee, see
Risner, 444 S.W.3d at 434-44; In re Wilson, 421
S.W.3d at 689.
recognize the harshness of this result, but given the changes
in the election code and our interpretation of those
enactments, we must deny Falgout's petition for writ of
mandamus. See Tex. R. App. P. 52.8(a).
 In her response, Haigler explains that
the petition form Falgout used was promulgated by the
Secretary of State and is not entirely clear that the
petition must state the party's name. She explains how
the form makes it "easy for a candidate or an election
official to miss that instruction" and notes that a
second candidate in Caldwell County committed the same error
and was also removed from the ballot. Haigler states that she
does not object to allowing Falgout or the other candidate to
cure by paying the fee, but as explained below, the election
code does not allow it.
 Falgout argues that Risner
and Wilson are distinguishable because those
candidates did not have the option of paying a fee instead of
filing a petition, arguing that the optional nature of the
petitions she filed should allow her to cure with a
post-deadline filing fee. But as discussed below, we do not
believe that is a meaningful distinction in light of our
interpretation of the election code, particularly sections
141.032(c) and 172.021(b-1) and (b-2).
 Section 141.032(c) also provides that
a "petition is not considered part of the application
for purposes of determining compliance with the requirements
applicable to each document, and a deficiency in the
requirements for one document may not be remedied by the
contents of the other document, " Tex. Elec. Code §
141.032(c), and Falgout argues that this means that we should
allow her to cure her application by paying the filing fee.
However, we interpret that language to mean only that an
application lacking certain required information may not be
considered to be complete by the inclusion of that
information in the ...