In Re Torry, (Tex. 2008)
No. 08-0057 (Tex. Jan. 25, 2008)(per curiam) (election mandamus against Democratic Party chair)

IN RE LARHONDA TORRY; 1st district (
01-08-00031 CV, ___ S.W.3d ___, 01-18-2008)
motion for temporary relief dismissed as moot
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants the petition for writ of mandamus.

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In Re Torry (Tex. 2008) (per curiam) (orig. proc.)



On January 2, 2008, the deadline by which a candidate must file an application for a place on the March
2008 primary ballot, relator LaRhonda Torry submitted with respondent Gerald Birnberg, Chair of the Harris
County Democratic Party, her application and the requisite $750 filing fee to become a candidate for State
Representative, District 147, in the Democratic Party Primary. See Tex. Elec. Code §§ 172.023(a), 172.024
(a)(5). Birnberg accepted Torry’s application and filing fee, but rejected her application five days later.
Birnberg explained that when Torry submitted her application, she did not have a campaign treasurer
appointment on file with the Texas Ethics Commission as the Election Code requires. See id. § 252.005(1)
(E). Birnberg further stated that the Election Code forbids a candidate: (1) from making a campaign
expenditure or accepting a campaign contribution at a time when a campaign treasurer appointment is not
in effect; and (2) from accepting a cash contribution exceeding $100.[1] See id. §§ 253.031(a), 253.033(a).
Birnberg concluded that, as a result of these Election Code violations, Torry could not have lawfully paid
her filing fee. Torry has since appointed a campaign treasurer.

Torry filed a mandamus petition with the court of appeals, which that court denied. __S.W. 3d__. Torry now
requests that this Court issue a writ of mandamus directing Birnberg to certify Torry’s name for placement
on the official ballot of the Harris County Democratic Party for the March 4, 2008, general primary election
for State Representative, District 147. Sections 161.009 and 273.061 of the Election Code authorize this
Court to issue a writ of mandamus to compel a political party officer to perform a duty imposed by law in
connection with an election. TEX. ELEC. CODE §§ 161.009, 273.061.

Birnberg does not contend that Torry has failed to satisfy the qualifications for office of state representative
set forth in Article III, Section 7 of the Texas Constitution.[2] Nor does Birnberg contend that Torry’s
application failed to comply with the applicable requirements of the Election Code. See TEX. ELEC. CODE
§§ 141.031, 172.021. Birnberg further acknowledges that Torry paid the $750 filing fee before 6:00 p.m. on
January 2, 2008, the deadline for applying for a place on the ballot. See id. § 172.023(a). We cannot
locate, and Birnberg does not identify, any Election Code provision that authorizes a party chair to refuse
to certify a candidate’s name for placement on the ballot on the basis of the candidate’s failure to designate
a campaign treasurer with the Texas Ethics Commission. Nor does the Election Code authorize a party
chair to insert additional certification requirements beyond those prescribed in the Election Code.

Birnberg is correct that the Election Code requires a candidate for state representative to appoint a
campaign treasurer and report that appointment to the Texas Ethics Commission. Id. §§ 252.001, 252.005
(1)(A). Neither statute prescribes a penalty for a candidate’s noncompliance with those provisions. Birnberg
is also correct in asserting that, pursuant to section 253.031(a), a candidate may not “knowingly accept a
campaign contribution or make or authorize a campaign expenditure at a time when a campaign treasurer
appointment for the candidate is not in effect” and that a violation of that provision is a Class A
misdemeanor. Id. § 253.031(a), (f). Additionally, a candidate may not knowingly accept from a contributor in
a reporting period a cash contribution that in the aggregate exceeds $100. Id. § 253.033(a). Assuming,
without deciding, that Torry violated sections 253.031(a) and 253.033(a) of the Election Code in paying the
filing fee, the Penal Code would provide for any appropriate penalty. The Election Code does not authorize
Birnberg, as a county party chair, to prescribe his own penalty for a candidate’s failure to comply with any
of these provisions.

Accordingly, without hearing oral argument, Tex. R. App. P. 52.8(c), we conditionally grant the writ of
mandamus and direct Birnberg to certify Torry as a candidate for State Representative, District 147, and
take all necessary steps to include her name on the Democratic Party primary ballot. We are confident
Birnberg will promptly comply, and our writ will issue only if he does not.

OPINION DELIVERED: January 25, 2008

[1] Birnberg claims that Torry accepted the $750 in cash from a woman who accompanied Torry to the
headquarters to submit her application and filing fee and that this constituted a campaign contribution.

[2] Article III, Section 7 of the Texas Constitution states: “No person shall be a Representative, unless he be
a citizen of the United States, and, at the time of his election, a qualified voter of this State, and shall have
been a resident of this State two years next preceding election, the last year thereof a resident of the
district for which he shall be chosen, and shall have attained the age of twenty-one years.” Tex. Const. art.
III, § 7.