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NO. ____________ IN THE FIRST OR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS In Re Steve Kherkher,

Relator.

RELATORâ€™S PETITION FOR WRIT OF MANDAMUS Bob Wynne State Bar No. 24060861 BWynne@kherkhergarcia.com Eric Hawley State Bar No. 24074375 EHawley@kherkhergarcia.com Steve Kherkher State Bar No. 11375950 Kherkher Garcia, LLP 801 Travis St. Suite 2175 Houston, Texas 77002 Telephone: 713.333.1030 SKherkherTeam@kherkhergarcia.com ATTORNEYS FOR RELATOR

IDENTITY OF PARTIES AND COUNSEL The following is a complete list of the parties, attorneys, and any other person who has any interest in the outcome of this suit: Relator

Mandamus Counsel

Steve Kherkher

Bob Wynne Eric Hawley Kherkher Garcia, LLP 801 Travis St., Suite 2175 Houston, Texas 77002

Respondent

Mandamus Counsel

Harris County Democratic Chair Lillie Schechter 4619 Lyons Avenue Houston, Texas 770020 lillie@harrisdemocrats.com

Cris Feldman Feldman & Feldman, P.C. 3355 West Alabama St., Suite 1220 Houston, Texas 77098 and Gerald M. Birnberg Williams, Birnberg & Anderson, L.L.P. 2000 Bering, Suite 850 Houston, TX 77057-3746

Real Party In Interest

Mandamus Counsel

Brittanye Lashay Morris 17503 Teal Forest Lane Spring, Texas 77379 or 7342 Autumn Aspen Lane Richmond, Texas 77407

Randal B. Wood Doug W. Ray Ray & Wood 300 Beardsley Lane, Suite B-100 Austin, Texas 78748

STATEMENT REGARDING ORAL ARGUMENT Relator does not seek oral argument on this Petition for Writ of Mandamus, unless the Court believes oral argument would assist the deliberative process. The matter presented here is not novel. The principles are expressly governed by Tex. Elec. Code ยง 145.003 and the well-settled Texas authority interpreting its terms. Moreover, resolution of this Petition for Writ of Mandamus, as it pertains to the November, 2020, election and preparation of ballots therefor, is time sensitive. As such, unless the Court determines that the benefits of argument outweigh the burden of the potential delay occasioned, Relator is satisfied with written presentation.

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TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL………………………………………ii STATEMENT REGARDING ORAL ARGUMENT…………………………..…iii INDEX OF AUTHORITIES………………………………………………………vi STATEMENT OF THE CASE……………………………………………………xi STATEMENT OF JURISDICTION……………………………………………...xii ISSUE PRESENTED………………………………………………………….…xiii INDEX OF SWORN MANDAMUS RECORD…………………………………….………………….…………….……1 STATEMENT OF FACTS…………………………………………………………3 SUMMARY OF THE ARGUMENT………………………………………………7 ARGUMENT AND AUTHORITIES ………………………………………..……9 I.

Applicable Standards………………………………………………………9

II.

County Chair Schechter Failed to Discharge Her Ministerial Duty to Declare Candidate Morris Ineligible for the Office of Judge of the 333rd District Court on the November 3, 2020, General Election Ballot…………………………………………………………….…………11 A.

Public Documents Conclusively Establish Candidate Morris’s “Residency” in Fort Bend County During a Period that Renders Her Ineligible for the Office of Judge of the 333rd District Court on the November 3, 2020, General Election Ballot……………………………………………………………..…13

Residence Homestead Exemption is not conclusive; Sworn statements of intent and execution are conclusive……………………………………………………19

Under Mills v. Bartlett, when a candidate’s sworn statements show intent to reside and bodily presence coincide, residence is conclusive……………………………………………………26

County Chair Schechter Had No Authority to Inquire Beyond the Sworn Public Documents that Conclusively Established Candidate Morris’s non-Harris County “ Residency” ………………………………………………………………………28

Even if County Chair Schechter Had Authority to Inquire Beyond the Sworn Public Records, Candidate Morris Supplied Neither Public Record Nor Sworn Statements Addressing or Undermining the Conclusiveness of the Sworn Public Documents Relator Supplied……………………………………..………………………32

No Adequate Remedy on Appeal if this Court Does not Grant Mandamus Relief………………………………………………………………...41

CONCLUSION…………………………………………………………………...42 CERTIFICATE OF SERVICE……………………………………………………44 RULE 52.3(j) CERTIFICATION…………………………………………………44 CERTIFICATE OF COMPLIANCE……………………………………...………44

INDEX OF AUTHORITIES

CASES:

Page(s)

Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712 (Tex.1990) ……………………………………………..…… 10 City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ……………………………………………...……25 Escobar v. Sutherland, 917 S.W.2d 399 (Tex.App.–El Paso 1996, orig. proceeding) ……………………………………………….…….… 10 Ferris v. Carlson, 314 S.W.2d 577 (Tex. 1958). ……………………………………………31 Garcia v. Carpenter, 525 S.W.2d 160 (Tex.1975) (orig. proceeding) ………………….………32 Harris County Appraisal Dist. v. Wilkinson, 317 S.W.3d 763 (Tex.App.-Houston [1 Dist.] 2010, pet. denied) ………………………………………………………….…….21 Hayes v. Harris County Democratic Executive Committee, 563 S.W.2d 884 (Tex.Civ.App.—Houston [14th Dist.] 1978, orig. proceeding) ……………………………………………………30 In re A.E.A., 406 S.W.3d 404 (Tex. App.—Fort Worth 2013, no pet.)….………………25 In re Barbara Walker, No. 14-20-0009-CV, __ S.W.3d __ (Tex. App. – Houston [14th Dist.] 2020, original proceeding ………………………………………10

In re Cercone, 323 S.W.3d 293 (Tex.App.–Dallas 2010, orig. proceeding). ……………………………………………………………………………….……11 In re Cullar, 320 S.W.3d 560 (Tex.App.–Dallas 2010, orig. proceeding) ……………...…………………………………………9, 10 In re Link, 45 S.W.3d 149 (Tex.App.-Tyler 2000, orig. proceeding) …………………10 In re Palomo, 366 S.W.3d 193 (Tex. 2012) ………………………………………………25 In re Peacock, 421 S.W.3d 913 (Tex. App – 2014, orig. proceeding) ……..…..…….……19 In re Perez, 508 S.W.3d 500 (Tex. App.—El Paso 2016, orig. proceeding) ………………………………………………..…….……10 In re Osborn, No. 03–13–00272–CV, 2013 WL 9797298 (Tex.App.–Austin April 30, 2013, orig. proceeding) ………………………………..……..10, 29 In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) ………………………………………….……41 In re Woodfill, 470 S.W.3d 473 (Tex.2015) ………………………………………….……10 In re Watkins, 465 S.W.3d 657 (Tex.App.–Austin 2014, orig. proceeding) ….….…….…11 In re Vela, 399 S.W.3d 265 (Tex. App. – San Antonio 2012, orig. proceeding) ………………………………………….……19, 20, 21, 23 vii

Lujan v. Navistar, Inc., 555 S.W.3d 79 (Tex. 2018) ……………………………………………… 22 McClelland v. Sharp, 430 S.W.2d 518 (Tex.Civ.App.—Houston [14th Dist.] 1968, orig. proceeding) ……………………………………………23, 24, 25 McDuffee v. Miller, 327 S.W.3d 808 (Tex.App.-Beaumont 2010, no pet.). …………...……… 21 Mellon Service Co. v. Touche Ross & Co., 946 S.W.2d 862 (Tex.App.—Houston [14th Dist.] 1997, no writ) …………………………………………..…………………..……14 Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964) ………………………………………..…26, 27 Nixon v. Slagle, 885 S.W.2d 658 (Tex. App. – Tyler 1994, no writ)………………..… 23, 29 Roosevelt v. Roosevelt, 699 S.W.2d 372 (Tex. App.—El Paso 1985, writ dism'd) ………..…….…24 Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex.2004) ………………………………….……… 41, 42 Sears v. Bayoud, 786 S.W.2d 248 (Tex.1990) …………………………………………………9 State v. Wilson, 490 S.W.3d 610 (Tex. App. – Houston [1st Dist.] 2016, no pet.) ………………………………………………………..……19, 21, 23 Strachan v. Lanier, 867 S.W.2d 52 (Tex.App.—Houston [1st Dist.] 1993, orig. proceeding). …………………………………………….………..……9 Wallace v. Howell, 707 S.W.2d 876 (Tex. 1986) (orig. proceeding). …………………….……10 viii

Weatherly v. Fulgham, 153 Tex. 481, 271 S.W.2d 938 (1954) ……………………………30, 32, 33 Witherspoon v. Pouland, 784 S.W.2d 951 (Tex. App.—Dallas 1990, orig. proceeding) …………………………………………..…………30, 32 STATUTES: Tex. Civ. Prac. & Rem.Code Ann. § 66.001–.003 (West 2008) …………………33 Tex. Const. Art. 5, § 7 ………………………………………….…………………14 Tex. Elec. Code Ann. § 1.015(a) (West 2010) ……………………………16, 23, 26 Tex. Elec. Code Ann. § 141.001(a)(5), (6), & (7) …………………………………14 Tex. Elec.Code Ann. § 145.003 (West 2010) …………………………..……passim Tex. Elec.Code Ann. § 145.003(f) (West 2010) ………………………11, 12, 40, 42 Tex. Elec.Code Ann. § 145.003(g) (West 2010) …………………………… passim Tex. Elec. Code Ann. §§ 221.002–.004 (West 2010) ………………………….…33 Tex. Elec.Code Ann. § 273.061 (West 2010) …………………………………….10 Tex.Gov't Code Ann. § 24.479(a) (Vernon 1988) …………………………………14 Tex. Penal Code Ann. § 37.10 (West, Westlaw through 2017 1st C.S.) ……………………………………………17 Tex. Tax Code Ann. § 11.13(l) (Vernon 2008) …………………………………..21

NO. ____________ IN THE FIRST OR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS In Re Steve Kherkher,

Relator.

RELATOR’S PETITION FOR WRIT OF MANDAMUS COMES NOW, Relator Steve Kherkher (“Kherkher”), and submits this Petition for Writ of Mandamus complaining of Respondent Harris County Democratic Party Chairman Lillie Schechter (“County Chair Schechter”) and seeking mandamus to compel the performance of a mandatory duty imposed by the Texas Election Code. In support thereof, Kherkher shows the following:

STATEMENT OF THE CASE Nature of the Case:

Public Authority Whose Conduct is Reviewed:

Administrative Disposition:

This original proceeding arises from the failure of the Democratic Party Chair to discharge her Tex. Elec. Code § 145.003 ministerial duty to declare a candidate ineligible for the 2020 General Election ballot. Harris County Democratic Party Chair Lillie Schechter. Harris County Democratic Party Chair Lillie Schechter received Relator’s challenge to the eligibility of Brittanye Morris for 333rd Harris County District Court Judge and three sworn public documents that establish ineligibility. MR 1. County Chair Schechter then determined the sworn public documents conclusively establish ineligibility and provisionally declared the candidate ineligible, but solicited any evidence that the sworn public documents were “untrue.” MR 2. Candidate Morris supplied documents; none sworn, none public. MR 4. County Chair Schechter issued a statement stating she is “now able to consider the candidate eligible to be on the ballot.” MR 5. This Petition for Writ of Mandamus ensued, challenging County Chair Schechter’s abrogation of her Tex. Elec. Code § 145.003 ministerial duty.

STATEMENT OF JURISDICTION This Court has original jurisdiction to consider relator's petition for writ of mandamus and to “compel the performance of any duty imposed by law in connection with the holding of an election ... regardless of whether the person responsible for performing the duty is a public officer.” Tex. Elec.Code Ann. § 273.061 (West 2010) (stating “[t]he supreme court or a court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer”).

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ISSUE PRESENTED Should Lillie Schechter, as Harris County Democratic Party Chair, be compelled to fulfill her Tex. Elec. Code ยง 145.003 ministerial duty to declare Candidate Brittanye Lashay Morris ineligible to be on the ballot as a candidate for the 333rd District Court of Harris County, Texas, when supplied sworn, public records that Schechter acknowledges conclusively establish Candidate Morris does not meet the residency requirements of Tex. Const. Art. 5, ยง 7?

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INDEX OF SWORN MANDAMUS RECORD Description March 18, 2020 letter challenge to the eligibility of Brittanye Lashay Morris as candidate for the 333rd Harris County District Court; Memorandum of Law (7 pages) Attachments to MR 1: Appendix A: Candidate Morrisâ€™s December 9, 2019, Application for a Place on the Democratic Party General Ballot. (1 page) Appendix B:

Sworn Public Record: November 13, 2018 General Warranty Deed: Lot 5, In Block 1 of Lakemont Section 4, a Subdivision in Fort Bend County, Texas According to the Map or Plat Thereof Recorded in Slide No. 2375/A of the Plat Records of Fort Bend County, Texas. (3 pages)

Appendix C:

Sworn Public Record: November 13, 2018, Deed of Trust Regarding 7342 Autumn Aspen Ln, Richmond, Texas 77407, to wit, Lot 5, In Block 1 of Lakemont Section 4, a Subdivision in Fort Bend County, Texas According to the Map or Plat Thereof Recorded in Slide No. 2375/A of the Plat Records of Fort Bend County, Texas. (22 pages)

Appendix D:

Printout Department of Motor Vehicle Driver Licenses Search. (3 pages) 1

MR 1

Appendix E:

Sworn Public Record: Candidate Morris’s Residence Homestead Application for 7342 Autumn Aspen Lane, sworn December 19, 2018 and January 14, 2019. (2 pages)

Appendix F:

2019 Year Fort Bend County Tax Assessor Collector Tax Statement with, among others, a Homestead Exemption for Legal Description: Lot 5, Block 1, Lakemont Section 4; and Parcel Address: 7342 Autumn Aspen Ln. (1 page)

Appendix G:

Fort Bend County Tax Assessor Collector Payment Record for Legal Description: 7342 Autumn Aspen Ln.; Last Payment, December 27, 2019. (1 page) March 21, 2020, Letter from Harris County Democratic Party Chair 2 Lillie Schechter (2 pages): • stating inclination, “pursuant to Tex. Elec. Code § 145.003, to declare you administratively ineligible to be a candidate for the office of judge of the 333rd district court on the November 3, 2020, General Election Ballot, based on the public records which have been presented to me which appear to establish conclusively your ineligibility to hold this office at this time”; and, • providing March 27, 2020, deadline to “provide evidence indicating that the public records described above are untrue. March 27, 2020 Letter from Attorney Doug W. Ray (4 pages) 2

April 7, 2020 Letter from Attorney Doug W. Ray (2 pages) with attachments: A.

Seller’s Temporary Residential Lease and Amendment to Contract Concerning Property (3 pages)

Copy of checks from Adolph R. Morris, Sr. (3 pages)

“To Whom It May Concern” Affidavit of Raven Anderson (1 page)

Inquiry of Voter Registration Database and Voting History (4 pages)

“To Whom It May Concern” Letter from Adolph Morris (1 page)

Move In/Move Out Inspection Agreement (1 page)

Letter from Brittanye Morris to Lillie Schechter (2 pages)

April 8, 2020 Statement of Harris County Party Chair Lillie Schechter 5 Concerning Declaration of Ineligibility of Judicial Candidate (2 pages) STATEMENT OF FACTS Candidate Morris filed her Application for a Place on the Democratic Party General Ballot on December 9, 2019, the deadline established by the State of Texas for applications to appear on the ballot for primary election on March 3, 2020.1 See 1

https://www.sos.texas.gov/elections/voter/2020-important-election-dates.shtml 3

MR 1, Appendix A. On March 18, 2020, Relator filed with the Harris County Democratic Chair, Lilli Schechter, (“County Chair Schechter”) a challenge to the eligibility of Candidate Morris and supplied documentation supporting the challenge, including a sworn Residence Homestead Application and a sworn Deed of Trust, each establishing that Candidate Morris is, in fact, ineligible to hold the office of Harris County District Judge. See MR 1. Specifically, Relator supplied three separate public records showing Candidate Morris’s filed sworn documents indicating that she intended to and did reside in Fort Bend County, Texas, at a time that rendered her Constitutionally ineligible for the ballot in Harris County. Id. (MR 1 Appendix B, General Warranty Deed; Appendix C, Deed of Trust, and Appendix E, Residence Homestead Exemption Application). County Chair Schechter agreed that these public documents, corroborated by the other documentation, independently and from their four corners “establish conclusively [Candidate Morris’s] ineligibility to hold this office at this time.” MR 2. For example, County Chair Schechter stated the following about one of the records Relator provided, the sworn Residence Homestead Exemption Application: • Among the documents received is a “Residence Homestead Exemption Application, dated January 14, 2019, in which our candidate swore and affirmed that on November 8, 2018, she began occupying certain property in Fort Bend County, Texas, as her “principal residence.”

• The Residence Homestead Application “indicat[es] that our candidate for the 333rd judicial district court resided in Fort Bend County for part of the two years before November 3, 2020; • That Residence Homestead Application is a “public record”; and • That Residence Homestead Application “contain[s] the candidate’s sworn assurance that the Fort Bend County property had been her residence on January 1, 2019. MR 2. County Chair Schechter illustrated not only the “public-record” nature of the documents Relator provided, but also the inescapable import of those documents containing Candidate Morris’s own “sworn statements of intent” to reside in Fort Bend County. MR 4. County Chair Schechter reasoned that, “unless something was wrong in the documents we had been given, our candidate should be removed.” MR 2, p. 2. Nevertheless, County Chair Schechter invited Candidate Morris to “provide evidence indicating that the public records described above are untrue” by March 27, 2020. See MR 2. Candidate Morris did not. County Chair Schechter received only “argument” from Candidate Morris’s counsel. MR 3, p. 4 (stating “[y]ou have [ ] been presented with no public records that conclusively show Ms. Morris has resided anywhere other than Harris County for the previously two years as stated in her ballot application”) MR 4 (stating “[u]nfortunately, while a lawyer for the candidate responded and argued that the homestead affidavit does not conclusively 5

establish the candidate was a legal resident of Fort Bend County at any point, nobody ever provided me with anything to establish that the candidate was actually residing in Harris County during the relevant period.”) County Chair Schechter waited further for Candidate Morris to submit “evidence” as previously requested. And, on April 7, 2020, 10 days after the deadline established by County Chair Schechter, Candidate Morris’s counsel supplied a “formal request” that County Chair Schechter “rescind and withdraw [the] declaration that Brittanye Morris is ineligible for the office of Judge, 333rd Judicial District.” The April 7th letter included seven attachments. Among the attachments were two sworn “To Whom It May Concern” affidavits, but nothing sworn from Candidate Morris, herself. See MR 4, Attachments C, E, and G. And, the April 7th letter did not include any public records, whatsoever. See MR 4, Attachments A – G. Nevertheless, on April 8, 2020, County Chair Schechter issued a “Statement of Harris County Democratic Party Chair Lillie Schechter Concerning Declaration of Ineligibility of Judicial Candidate” stating: “Based on [ ] documents, which were not previously available to me, I am now able to consider the candidate eligible to be on the ballot.” This Petition for Writ of Mandamus ensued seeking a writ to compel County Chair Schechter to perform her ministerial duty to declare Candidate Morris ineligible to be a candidate for the office of Judge of the 333rd District Court on the November 3, 2020, General Election Ballot. 6

SUMMARY OF THE ARGUMENT County Chair Schechter has a ministerial duty to declare Candidate Morris ineligible for the Office of Judge, 333rd Harris County Judicial District when presented with public records which, within their four corners, establish that Candidate Morris lived in Fort Bend County, Texas during the two years preceding the election. County Chair Schechter abrogated that ministerial duty when she received and considered unsworn, non-public documents from Candidate Morris purporting to explain her evolving thought processes and “buyer’s remorse” after swearing to her Fort Bend residency. County Chair Schechter abrogated that ministerial duty the moment she found the public documents conclusive and failed to unwaveringly declare Candidate Morris ineligible. This Court has original mandamus jurisdiction to correct and compel County Chair Schechter, a public officer, to perform the ministerial duty and should do so here. None of the materials Candidate Morris provided relieved County Chair Schechter of her ministerial duty to declare Candidate Morris ineligible because none of those materials were public records. Even if considered, those materials do not address the question conclusively answered by Relator’s public records: Did Candidate Morris swear under oath that she not only intended to live in Fort Bend but that, in fact, she did live in Fort Bend during the two-year period preceding the general election? Candidate Morris relies upon a single line of Texas cases to rescue 7

her from her own words; cases that, given every bit of weight possible, still say nothing about the import of a candidate’s own sworn words establishing residency. Stated differently, Candidate Morris’s sworn, public Homestead Exemption Application is not conclusive evidence of residency simply because Candidate Morris has exempt Fort Bend property; it is conclusive because, in applying for the exemption, she declared her sworn intent to reside in that property, and she swore that she did reside in that property in December 2018 and January 2019. Similarly Candidate Morris’s sworn, public Deed of Trust is not conclusive evidence of residency simply because Candidate Morris owns property in Fort Bend; it is conclusive because, in applying for the loan to obtain that Fort Bend property, she made a covenant to live in that property and make it her principal residence. In other words, the documents that disqualify Candidate Morris are disqualifying because they are the candidate’s own sworn words. The Court will find no public record in this mandamus record that explains or disclaims those sworn statements. For example, the Court will find no sworn statement from Candidate Morris to controvert, contradict or complain that either: (a) the signature on the disqualifying public documents is a forgery; or (b) that such statements were not in fact made and filed by Candidate Morris. Indeed, the Court will find no sworn statement from Candidate Morris at all. County Chair Schechter’s ministerial duty was clear. County Chair Schechter 8

did not have the authority to “go outside the record” to perform her ministerial duty. Even if she had the authority, County Chair Schechter received nothing from Candidate Morris to explain or undermine the conclusiveness of her own sworn statements. As such, there is no fact question for this Court to resolve because Candidate Morris was unable to provide a contemporaneous public document amending or withdrawing her sworn filings and was apparently unwilling to provide her own sworn statement, under penalty of perjury, that she did not sign or file the public records Relator has provided. The Court should grant the Petition and compel County Chair Schechter to declare Candidate Morris ineligible for the office of Judge of the 333rd District Court on the November 3, 2020, General Election Ballot, pursuant to the ministerial duty required of her by the Texas Election Code. ARGUMENT AND AUTHORITIES I.

APPLICABLE STANDARDS. As outlined above, mandamus relief to compel County Chair Schechter to

comply with the mandatory duty under the Texas Election Code to declare a candidate ineligible lies exclusively with the Texas appellate courts of our state, not with its district courts. See Sears v. Bayoud, 786 S.W.2d 248, 249 (Tex.1990); Strachan v. Lanier, 867 S.W.2d 52, 53 (Tex.App.—Houston [1st Dist.] 1993, orig. proceeding). County Chair Schechter’s Tex. Elec. Code § 145.003 statutory obligation to declare a candidate ineligible is a “duty imposed by law.” See In re Cullar, 320 9

S.W.3d 560, 563-4 (Tex.App.–Dallas 2010, orig. proceeding); In re Perez, 508 S.W.3d 500 (Tex. App.—El Paso 2016, orig. proceeding); In re Osborn, No. 03– 13–00272–CV, 2013 WL 9797298 at *1 (Tex.App.–Austin April 30, 2013, orig. proceeding). Consequently, her failure to act is subject to mandamus review. Tex. Elec. Code Ann. § 273.061; In re Osborn, No. 03–13–00272–CV, 2013 WL 9797298 at *1. These provisions of the Election Code dealing with candidacy for political office are mandatory and are to be strictly enforced. In re Barbara Walker, No. 14-20-0009-CV, __ S.W.3d __ (Tex. App. – Houston [14th Dist.] 2020, original proceeding (citing Wallace v. Howell, 707 S.W.2d 876, 877 (Tex. 1986) (orig.

proceeding). It is not the prerogative of the charged authority – here, Harris County Democratic Chair Lillie Schechter – to resolve disputed fact issues when discharging her Texas Election Code § 145.003 ministerial duty. And, it is not the purpose of a Texas Election Code mandamus reviewing the authority’s discharge of that duty to resolve disputed fact issues. See Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990); see also In re Woodfill, 470 S.W.3d 473, 478 (Tex.2015); Escobar v. Sutherland, 917 S.W.2d 399, 403 (Tex.App.–El Paso 1996, orig. proceeding). Instead, Relator must establish a clear legal right to performance of the act he seeks to compel arising from a clearly fixed legal duty of the officer sought to be compelled. See In re Link, 45 S.W.3d 149, 151–52 (Tex.App.-Tyler 2000, orig. 10

proceeding); In re Watkins, 465 S.W.3d 657, 659 (Tex.App.–Austin 2014, orig. proceeding); In re Cercone, 323 S.W.3d 293, 295 (Tex.App.–Dallas 2010, orig. proceeding). County Chair Schechter had such a fixed Tex. Elec. Code § 145.003 legal duty to declare Candidate Morris ineligible for the 333rd Judicial District of Harris County for failure of the Constitutional residency requirement. Mandamus should issue to compel her to discharge her ministerial duty and declare Candidate Morris ineligible. II.

COUNTY CHAIR SCHECHTER FAILED TO DISCHARGE HER MINISTERIAL

DUTY TO DECLARE CANDIDATE MORRIS INELIGIBLE FOR THE OFFICE OF JUDGE OF THE 333RD DISTRICT COURT ON THE NOVEMBER 3, 2020, GENERAL ELECTION BALLOT.

The existence of County Chair Schechter’s ministerial duty is not disputed. Instead, Candidate Morris submitted herself to the authority of County Chair Schechter to determine her eligibility under the Texas Election Code. See e.g. MR 4 (Candidate Morris’s counsel seeking rehearing on the stated intent to declare “that Brittanye Morris is ineligible for the office of Judge, 333rd Judicial District, based upon her alleged lack of residency for the two years preceding the general election”). Nevertheless, that authority and the duty that attends it are unequivocally established by sections 145.003(f)(2) & 145.003(g) of the Texas Election Code, which state: (f) A candidate may be declared ineligible only if: (1) a candidate's application for a place on the ballot indicates ineligibility or (2) “facts indicating that 11

the candidate is ineligible are conclusively established by another public record.” § 145.003(f) (emphasis supplied); and (g) When presented with an application for a place on the ballot or another public record containing information pertinent to a candidate's eligibility, the appropriate authority shall promptly review the record. If the authority determines that the record establishes ineligibility as provided by Subsection (f), the authority shall declare the candidate ineligible. § 145.003(g) (emphasis supplied). Acknowledging the authority of County Chair Schechter, Candidate Morris instead raised a single challenge to the Relator-filed public documents and the proposed declaration of her ineligibility. She urged that the public records do not show Ms. Morris’s residency conclusively and, thus, are “insufficient to authorize you to declare her ineligible.” MR 3. Candidate Morris makes but one argument for which she supplies any legal authority, however; that is, citing a line of cases regarding the impact of the existence of a homestead exemption, Candidate Morris urges that “the homestead exemption application is not conclusive of [her] domicile under the Election Code.” See MR 4; see also MR 4, Attachment G, Letter from Brittanye Morris to Lillie Schechter (stating “the homestead tax exemption is not conclusive of my domicile nor my intent thereof”). Candidate Morris misperceives the import of that Texas authority regarding the evidentiary value of a Residential Homestead Exemption and its distinction from the circumstance presented here. Stated differently, as the Court considers the sole question presented here, the Court will discover a distinction Candidate Morris has ignored. The public documents 12

Relator filed contain Candidate Morris’s sworn statements of her residence intentions coupled with her sworn statement of her present Fort Bend residence status on November 8, 2018.

At a minimum, then, County Chair Schechter

possessed two public records (not disputed), dated November 8, 2018 (not disputed); which is a date less than two years from the November 3, 2020 election (not disputed); containing sworn statements (not disputed); establishing that Candidate Morris intended to live in Fort Bend County and did live in Fort Bend County (found by County Chair Schechter to be conclusive of Fort Bend County residence). The duty is to declare ineligibility. The analysis does not change even if: (a) Candidate Morris later changed her mind; (b) Candidate Morris moved on November 9, 2018; (c) Candidate Morris was wrong at the time she swore to the facts; (d) Candidate Morris lied at the time swore to the facts; or (e) anything in between these possibilities. A.

To be eligible as a candidate for district judge, or elected or appointed to, a public elective office in this state, “a person must, among other requirements, satisfy any other eligibility requirements prescribed by law for the office.” See Tex. Elec. 13

Code Ann. § 141.001(a)(5), (6), & (7) (emphasis supplied). The terms of eligibility are not disputed in this case. Article 5, Section 7 of the Texas Constitution provides: “Each district judge shall be elected by the qualified voters at a General Election and shall be a citizen of the United States and of this State, who is licensed to practice law in this State and has been a practicing lawyer or a Judge of a Court in this State, or both combined, for four (4) years next preceding his election, who has resided in the district in which he was elected for two (2) years next preceding his election, and who shall reside in his district during his term of office and hold his office for the period of four (4) years, and who shall receive for his services an annual salary to be fixed by the Legislature.” Const. Art. 5, § 7 (emphasis supplied). The “territory from which the office is elected” or “district” at issue is Harris County. Specifically, the 333rd Judicial District Court is “composed of Harris County only.” See Tex. Gov't Code Ann. § 24.479(a) (Vernon 1988); see also Mellon Service Co. v. Touche Ross & Co., 946 S.W.2d 862 (Tex.App.—Houston [14th Dist.] 1997, no writ) (holding that the 333rd Judicial District is a Harris County-only office). Notwithstanding Candidate Morris’s sworn application, she does not fulfill this Constitutional residency eligibility requirement. In December 2019, Candidate Morris applied for a place on the November 3, 2020, Democratic Party General Ballot for the 333rd District Court for Harris County, Texas. MR 1, Appendix A. She indicated, in support of her eligibility for 14

the position sought, continuous residence in the territory/district/precinct – Harris County – for six years. She listed her permanent residence address as 17503 Teal Forest Lane, Spring, Texas 77379. Based upon those sworn representations, County Chair Schechter, or her designee, approved Candidate Morris’s application. MR 1, Appendix A. After the primary election, Relator learned that Candidate Morris might not meet the residency requirement of the Texas Election Code and the Texas Constitution by virtue of her homesteaded property in Fort Bend County, a residence purchased within approximately a year before Candidate Morris made her application for a place on the ballot. Inquiry confirmed to Relator that, not only did Candidate Morris own a home in Fort Bend County, but also, according to Fort Bend County public records and Candidate Morris’s sworn statements therein, she resided in that Fort Bend County home for some period of 2018 and 2019. A further public document, Candidate Morris’s Deed of Trust for the purchase of that Fort Bend County home, also contained a sworn statement about residency; that is, a covenant to reside in the home as her “Principal Residence” for at least a year. Those sworn statements, made in publicly-filed documents, expressly contradict the residency representation Candidate Morris made in her sworn application to be on the ballot. Relator therefore filed with County Chair Schechter a challenge to Candidate Morris’s eligibility based upon “residence.” Section 1.015(a) of the Texas Election 15

Code defines residence, stating “residence” means domicile, that is, one's home and fixed place of habitation to which one intends to return after any temporary absence.” Tex. Elec. Code Ann. § 1.015(a) (West 2010). As conclusive support for the challenge, Relator submitted Candidate Morris’s Fort Bend County Residential Homestead Exemption Application for 7342 Autumn Aspen Ln, Richmond, Texas 77407, to wit, Lot 5, In Block 1 of Lakemont Section 4, a Subdivision in Fort Bend County, Texas According to the Map or Plat Thereof Recorded in Slide No. 2375/A of the Plat Records of Fort Bend County, Texas (hereinafter “Candidate Morris’s Fort Bend Home”). On page one of the application, Candidate Morris answered the following question:

On page two of that same Residential Homestead Exemption Application, Candidate Morris did swear or aver to the truth of the contents and – subject to penalty for perjury – to the truth of statement that she did “own and live in” the Fort Bend property. Candidate Morris also acknowledged the explicit admonishment, 16

located directly above her signature, that any false statement on the form constituted a Class A misdemeanor for tampering with a governmental record pursuant to Tex. Penal Code Ann. § 37.10 (West, Westlaw through 2017 1st C.S.).

The statements were truthful, as corroborated by the extension of that exemption into 2019, and evidenced by the Fort Bend County 2019 Year Tax Statement (MR 1, Appendix F), along with Candidate Morris’s payment of those reduced taxes, as evidenced by the Fort Bend County Tax Assessor Collector Payment Record (MR 1, Appendix G). County Chair Schechter correctly found Candidate Morris’s Fort Bend Residential Homestead Exemption Application to be conclusive of Candidate Morris’s ineligibility. MR 2, p. 1. Relator also submitted a General Warranty Deed evidencing purchase of Candidate Morris’s Fort Bend home. The contemporaneous Deed of Trust for 17

Candidate Morris’s Fort Bend home includes Candidate Morris’s promises regarding her residence:

In fact, Candidate Morris acknowledged before a notary that covenant to occupy the Fort Bend property as a “principal residence” for at least a year. MR 1, Appendix C, p. 17-18. Both the General Warranty Deed and the Deed of Trust are public records and facially establish they were electronically recorded on November 3, 2018. See MR 1, Appendix B and C. County Chair Schechter correctly found those documents to be independently conclusive of Candidate Morris’s ineligibility. MR 2, p. 2. As to this independent basis for ineligibility, neither Candidate Morris nor her counsel have offered evidence to counter or prove “untrue” the General Warranty Deed or the Deed of Trust as a basis for ineligibility. Indeed, the April 7, 2020, letter from Candidate Morris (MR 4) and the letter from Candidate Morris herself (MR 4, Attachment G) make no mention of this basis for ineligibility. Standing alone and without regard to Candidate Morris’s sworn Fort Bend Homestead Exemption Application, the General Warranty Deed, and Deed of Trust – unchallenged – engaged the ministerial duty for County Chair Schechter to declare the candidate 18

ineligible. She did not. Candidate Morris did, however, challenge the alternate basis for ineligibility. She devoted all argument to a challenge to the conclusiveness of her Fort Bend County Residential Homestead Exemption Application as evidence of “residence.” Candidate Morris cites a line of cases [In re Vela, 399 S.W.3d 265 (Tex. App. – San Antonio 2012, orig. proceeding); In re Peacock, 421 S.W.3d 913, 918 (Tex. App – 2014, orig. proceeding); and State v. Wilson, 490 S.W.3d 610, 623 (Tex. App. – Houston [1st Dist.] 2016, no pet.)] as purported legal authority for County Chair Schechter to discount the sworn statements in Morris’s Fort Bend County Residential Homestead Exemption Application as less than conclusive evidence of “residence.” MR 4. Candidate Morris further pointed to Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964) for the proposition that “residence” requires a facts and circumstance assessment of “intention and action” that cannot be captured by the public documents Relator filed. Relator takes the meritless arguments in turn. 1.

Residence Homestead Exemption is not conclusive; Sworn statements of intent and execution are conclusive.

Relator has no disagreement with the Texas authority Candidate Morris relies upon; it simply does not apply here for a central reason. None of those cases implicate the evidentiary value of the candidate’s contemporaneous sworn statements regarding both her intent to reside and the execution of that intent to reside. 19

In In re Vela, Mr. Vela, Jr. filed his Application for a Place on the City of Rio Bravo, Texas General Election Ballot for the position of mayor in August, 2012. 399 S.W.3d at 265. The City Secretary declared Vela ineligible to be a candidate for the position of mayor because he did not reside in the City of Rio Bravo for a period of six months prior to filing his application. Id. The City Secretary relied upon Mr. Vela’s April 1995, Application for Homestead Exemption for property outside of Rio Bravo. The Court of Appeals wasted little ink and less analysis determining that the 17-year-old application did not conclusively establish 2012 residency. Id. The appellate decision simply does not state, one way or the other, whether the application contained any sworn statements. As Mr. Vela’s homestead application, sworn or not, was long stale, In re Vela, provides Candidate Morris no authority for holding that her sworn statements of intent to reside and implementation of that intent to reside can be anything other than conclusive. The In re Peacock Court examined the decision of the Chairman of the Cherokee County Republican Party to declare Candidate Stone ineligible for the ballot based upon “an official printout from the Williamson County Appraisal District showing that Stone's homestead exemption is in effect.” 471 S.W.3d at 916. The Court was not presented with an application for exemption. The Court was not presented with sworn statements from Candidate Stone. The Court determined that “[a] homestead designation may be relevant in a dispute over residency, such as an 20

election contest, but it is not conclusive evidence for purposes of the discharge of a Tex. Elec. Code § 145.003 duty. Id. at 917 (citing McDuffee v. Miller, 327 S.W.3d 808, 820 (Tex.App.-Beaumont 2010, no pet.). The In re Peacock decision is not just distinguishable; it is logical. “The Tax Code anticipates circumstances in which the owner of a residence homestead temporarily lives in another residence, and provides that a home will not necessarily lose its character as a residence homestead for that reason.”

Harris County Appraisal Dist. v. Wilkinson, 317 S.W.3d 763, 766

(Tex.App.-Houston [1st Dist.] 2010, pet. denied) (citing Tex. Tax Code Ann. § 11.13(l) (Vernon 2008)). But, because the evidence considered in In re Peacock does not contain any candidate sworn statement, it provides Candidate Morris no authority for holding that her sworn statements of intent to reside and implementation of that intent to reside can be anything other than conclusive. State v. Wilson simply affirms the unremarkable principles set forth in In re Vela and In re Peacock. And, the Wilson case did not involve a Residential Homestead Exemption Application. 490 S.W.3d 610. Instead, on appeal of the denial of judgment notwithstanding the verdict, the First Court of Appeals considered whether the quo warranto jury made its residency decision contrary to conclusive evidence. Id. That evidence was a “copy of the Harris County Appraisal District's ‘Real Property Account Information’ for the [out of district] Lake Lane house for the 2013 tax year, reflecting that a residential homestead exemption had 21

been claimed on the property.” Id at 614. Troublesome to the State, the Appraisal District listed Wilson's wife as the owner of the Lake Lane house. Id. Not surprisingly, the Court found the homestead exemption was not conclusive of Candidate Wilson’s residence. Id. Unlike this case, Candidate Wilson did not swear that he lived at the Lake Lane property for which Harris County extended a Homestead Exemption; he enjoyed an exemption listed in his wife’s name. Id. In fact, had Candidate Wilson submitted a sworn application averring that he lived at the Lake Lane property, he likely would not have been permitted to proffer his own testimony at trial – as he was – that he did not intend to reside at Lake Lane. Id. at 623. Such conflicting testimony would have been properly excluded as a “sham.”2 See Lujan v. Navistar, Inc., 555 S.W.3d 79, 87 (Tex. 2018) (holding that the sham-affidavit rule permits a trial court to “conclude that a party does not raise a genuine fact issue by submitting sworn testimony that materially conflicts with the same witness's prior sworn testimony, unless there is a sufficient explanation for the conflict”). Using a sufficiency standard of review, the First Court held that the jury was entitled to 2

The “sham affidavit” rule illustrates the significant weakness of Candidate Morris’s position in this mandamus. Even if County Chair Schechter had authority, and she does not, to consider a hypothetical sworn statement from Candidate Morris denying the contents of her prior sworn, publicly-filed statement of present November-December, 2018 intention to reside at the Fort Bend property, still the “sham affidavit” rule teaches that the later sworn statement is of no value unless accompanied by an explanation for the conflict. Because Candidate Morris never suggests that the sworn statements were not true when made, she likewise offers no explanation, sworn or otherwise, for the conflict. 22

consider and reject the wife’s-homestead-exemption evidence of Wilson’s “residence,” particularly as the jury heard Wilson’s own sworn testimony of his intentions regarding his “residence.”

See Id. (citing Tex. Elec. Code Ann. §

1.015(a)) (recognizing that an intent to return to a “residence” after temporary absence does not eviscerate defining “residence”). In short, In re Vela, In re Peacock, and State v. Wilson say nothing about the evidentiary value of a candidate’s sworn statement of intent to live at a property that is not within the district for which the candidate seeks office.

By contrast,

McClelland v. Sharp, teaches that strictures against looking beyond public documents are particularly applicable “where the public records showing the disqualification of the candidate are based on representations by [the candidate] himself, show[ing] on their face that [the candidate] will not, on [election day], be qualified to hold the office for which he seeks to have himself certified as the [party] nominee.” 430 S.W.2d 518, 520 (Tex.Civ.App.—Houston [14th Dist.] 1968, orig. proceeding).

The Tyler Court of Appeals agreed and, following McClelland,

disqualified a candidate for State Senate in District 3 based upon his “application for voter registration signed [ ] under penalty of perjury” averring he was “a resident of Travis County,” a county not within District 3. Nixon v. Slagle, 885 S.W.2d 658, 660-61 (Tex. App. – Tyler 1994, no writ). McClelland and Nixon are on point with the question presented here. And, these cases demonstrate the “conclusiveness” 23

inquiry is not at all difficult when the public documents presented show ineligibility in the candidate’s own sworn words. Relator’s Memorandum in support of his March 18, 2020, challenge to Candidate Morris’s eligibility directed County Chair Schechter to the McClelland decision. MR 1. In turn, County Chair Schechter shared the Memorandum with Candidate Morris. MR 2, p. 1 n.1. Neither letter from Candidate Morris’s counsel attempts to distinguish or even cites McClelland v. Sharp. Candidate Morris’s silence on the McClelland decision is telling. The Fourteenth Court of Appeals’ conclusion in McClelland establishes strong public policy, which is dispositive in this proceeding. That is, giving greater significance to a public document containing sworn representations of the putative candidate makes perfect sense. Texas law treats similar sworn representations as judicial admissions, conclusively establishing the contents as against the speaker. See e.g. Roosevelt v. Roosevelt, 699 S.W.2d 372, 374 (Tex. App.—El Paso 1985, writ dism'd) (holding wife's sworn inventory characterizing jewelry as partly separate, partly community was judicial admission of the community status of the latter). Like the policy underlying the sham-affidavit rule, the policy recognizing judicial admissions as conclusive is rooted in the notion that “it would be absurd and manifestly unjust to permit a party to recover after he has sworn himself out of court

by a clear and unequivocal statement.” See In re A.E.A., 406 S.W.3d 404, 410 (Tex. App.—Fort Worth 2013, no pet.). And, Candidate Morris’s explanations in this case are analogous to McClelland’s fruitless explanations, which are simply “calculated to refute the inevitable conclusion to be drawn from the above publicly recorded facts.” McClelland v. Sharp, 430 S.W.2d at 520. Like the evidence in McClelland, a single conclusion may be drawn from Candidate Morris’s publicly recorded sworn statements; that is, she intended to and did reside at the Fort Bend property in 2018 and 2019. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005) (holding that “conclusive evidence” is evidence of such a character that “reasonable people could not differ in their conclusions”). Candidate Morris never argued or suggested that the sworn public records Relator filed are capable of being read in any way other than to establish Candidate Morris’s Constitutional ineligibility to be on the ballot. Faced with Candidate Morris’s silence on the inescapable conclusion to be drawn from the face of the sworn public records, County Chair Schechter had a duty to declare Candidate Morris ineligible. See In re Palomo, 366 S.W.3d 193, 194 (Tex. 2012) (holding that “[a] party officer responsible for certifying a candidate’s name for placement on the general election ballot must declare the candidate ineligible if ‘facts indicating that the candidate is ineligible are conclusively established by a public record’”). County Chair Schechter abrogated that legal duty. 25

Mandamus should issue to compel her to discharge her ministerial duty and declare Candidate Morris ineligible. 2.

Under Mills v. Bartlett, when a candidate’s sworn statements show intent to reside and bodily presence coincide, residence is conclusive.

Candidate Morris attempts to defeat County Chair Schechter’s ministerial duty by reference to Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964) for the proposition that “residence” requires a facts-and-circumstance assessment of “intention and action.” MR 3, p. 2 (quoting the Mills case as stating that “volition, intention, and action are all elements to be considered in determining where a person resides”). Again, Relator has no quarrel with the basic principles outlined in Mills v. Bartlett, particularly because its teachings relied upon by Candidate Morris simply track the statutory definition of “residence,” which contemplates both intent and action. Tex. Elec. Code Ann. § 1.015(a) (defining residence as “domicile, that is, one's home and fixed place of habitation to which one intends to return after any temporary absence”). But Candidate Morris neglects a central holding of the case: “Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide at that moment the residence is fixed and determined. There is no specific length of time for the bodily presence to continue. Here there was combined volition, intention and action. Mills v. Bartlett, 377 S.W.2d at 637 (emphasis added). In Mills, Candidate Bartlett “went to Van Zandt County [and] while there 26

entered into a binding contract of law partnership as well as of employment with Mr. Grisham as Assistant County Attorney and to all intentions and purposes decided and declared that Van Zandt County would be the county of his residence from that time forward.” Id. The Court held this alone constituted conclusive evidence of his residence and he was ineligible. Id. Here, Candidate Morris did far more than Candidate Bartlett. She swore to her intention to reside in Fort Bend County. She swore to her “bodily presence,” stating, in the present tense, she “lives” in the Fort Bend County property. And, in an independently-disqualifying record, she swore both intention to reside and her continued presence for a year beyond November, 2018. Candidate Bartlett and Candidate Morris are indistinguishable insofar as Candidate “Bartlett himself was the only witness” needed to declare ineligibility. More troubling than Candidate Morris’s truncated presentation of Morris v. Bartlett is the conclusion she draws from her read of the case. She suggests that anytime a candidate is willing to make any statement about residence, true or untrue, the candidate’s mere willingness to contradict a conclusive public document regarding residency creates a fact question that cannot be resolved under Tex. Elec. Code § 145.003. Candidate Morris’s construction of Millis v. Bartlett would utterly eviscerate the statutory mandate. Because the statute does not contemplate an “eligibility” trial, Relator had no opportunity to object to the attachments Candidate 27

Morris tendered. County Chair Schechter would not have had the authority to rule on such an objection or have her rulings subjected to this Court’s review. In short, Candidate Morris is suggesting that there can never be conclusive evidence so long as a candidate is willing to write a letter saying “I didn’t mean to,” or have a relative say “she never intended to.” The consequence of signing and swearing to the contents of a document that will be filed as a public record is that it may bind you in the future. Candidate Morris’s sworn, publicly-filed documents unequivocally establish her November, 2018 intent to reside in Fort Bend County and her actual residency in Fort Bend County. County Chair Schechter was correct on this point: Candidate Morris’s statements, made after taking an oath and for the purpose of public filing, bind her as conclusive under the Election Code. County Chair Schechter was incorrect in concluding that her ministerial duty permitted anything other than a declaration of ineligibility after presented with that conclusive evidence. Mandamus should issue to compel County Chair Schechter to act on the conclusive, sworn public records and discharge her ministerial duty and declare Candidate Morris ineligible. B.

County Chair Schechter Had No Authority to Inquire Beyond the Sworn Public Documents that Conclusively Established Candidate Morris’s non-Harris County “Residency”

Relator presented County Chair Schechter public documents conclusively establishing Candidate Morris’s ineligibility. County Chair Schechter correctly 28

concluded that those documents conclusively establish Candidate Morris’s ineligibility. Hence, County Chair Schechter had one statutory path available: declare ineligibility. 3 Tex. Elec. Code §§ 145.003(g). Instead, County Chair Schechter did what every Texas authority says is impermissible. She inquired beyond the conclusive public record. Under the plain language of the statute, County Chair Schechter’s duty to declare a candidate ineligible does not include the authority to solicit information controverting the public record. See Nixon v. Slagle, 885 S.W.2d 658, 660-61 (Tex. App. – Tyler 1994, no writ) (holding that, where public records conclusively establish a residence ineligibility, residency disqualification is ministerial rather than a fact-seeking mission for judicial determination); In re Cullar, 320 S.W.3d 560, 563-4 (Tex.App.– Dallas 2010, orig. proceeding) (noting that should “the authority” determine the record establishes ineligibility, “the authority shall declare the candidate ineligible.”); see also In re Osborn, No. 03–13–00272–CV, 2013 WL 9797298 at *1 (Tex.App.–Austin April 30, 2013, orig. proceeding). In determining whether a candidate is ineligible, the County Chair may not consider facts that are not

3 That path did not include weighing evidence. And, that path did not include weighing the “parties rights.” But, County Chair Schechter did consider the input from community leaders. And, she did consider the consequences of improperly declaring Candidate Morris when sworn public documents would render her vulnerable to later removal and replacement by “the Republic Texas Attorney General, and the State Republican leadership.” See MR 4, p. 2. County Chair Schechter’s contemplation of the course action following a determination that the public records conclusively establish Fort Bend County residency is the antithesis of “ministerial.” 29

contained in the public record. See Weatherly v. Fulgham, 153 Tex. 481, 271 S.W.2d 938 (1954) (holding “[e]lection officials, charged with the duty of certifying names to properly appear on the ballot, have no authority to inquire into facts dehors the record; that is facts outside or beyond the record); see also Witherspoon v. Pouland, 784 S.W.2d 951, 954 (Tex. App.—Dallas 1990, orig. proceeding). In fact, County Chair Schechter explicitly acknowledged the standard when, in her April 8, 2020, Statement, she correctly stated about the public records Relators submitted: “I could not ignore the Residence Homestead Application and our candidate’s sworn statements that she lived in Fort Bend for part of the relevant time period.” MR 5; see also Hayes v. Harris County Democratic Executive Committee, 563 S.W.2d 884 (Tex.Civ.App.—Houston [14th Dist.] 1978, orig. proceeding) (stating that “[w]here facts which would disqualify the applicant are conclusively established by public records, [ ] election officials may not ignore those facts”). Candidate Morris offered no authority contrary to the Weatherly or Hayes decisions that would authorize County Chair Schechter to look beyond the conclusive public record; there is none.

As such, County Chair Schechter’s

acknowledgement that Relator supplied two, independent and conclusive public records proving Candidate Morris’s ineligibility triggered the ministerial duty to declare her ineligible. Id.

Instead, County Chair Schechter pivoted from the conclusiveness of the public records. County Chair Schechter departed markedly from the Section 145.003(g) ministerial “shall” duty and instead requested that Candidate Morris “provide evidence indicating that the public records described above are untrue.” MR 2; Tex. Elec. Code §§ 145.003(g). Upon Petition for Writ of Mandamus, the Court’s review of these record facts establishing the public official’s departure from a ministerial duty is similarly constrained; it is not permitted to expand the record by embarking on a fact-finding mission impacting a candidate’s eligibility. See e.g., Ferris v. Carlson, 314 S.W.2d 577 (Tex. 1958). Because the sworn public records Relator filed conclusively established that Candidate Morris does not meet the residence requirement, County Chair Schechter should not have looked further before declaring her ineligible. Tex. Elec. Code §§ 145.003(g). Under the well-established authority discussed above, the Court need look no further to conclude that County Chair Schechter abrogated her ministerial duty. Mandamus should issue to compel her to discharge the ministerial duty and declare Candidate Morris ineligible.

Even if the Court determines that County Chair Schechter was somehow authorized to extend the invitation to Candidate Morris to show the Relator-filed public records are untrue after finding that those sworn, public records conclusively established Candidate Morris’s ineligibility, County Chair Schechter still abrogated her ministerial duty by (1) considering in any way the unsworn and/or non-public records Candidate Morris submitted and (2) concluding that the records Candidate Morris submitted rendered Candidate Morris eligible. See Witherspoon v. Pouland, 784 S.W.2d 951, 954 (Tex. App.—Dallas 1990, orig. proceeding) (holding that where the facts relied upon are not conclusively established by another public record, the election official is without authority to rely upon them); see also Garcia v. Carpenter, 525 S.W.2d 160, 161 (Tex.1975) (orig. proceeding); Weatherly v. Fulgham, 271 S.W.2d at 941. A review of each of the attachments to Candidate Morris’s attorney’s letter illustrates two critical points here. First, a facial examination of the attachments shows that none are public records and none are sworn denials of the prior sworn statement by Candidate Morris of her intent to reside in Fort Bend and the sworn statement by Candidate Morris that she was living in Fort Bend and making the Fort 32

Bend property her principal residence. It bears repeating. When County Chair Schechter invited Candidate Morris to show the public documents untrue, Candidate Morris responded with anecdotal evidence that, placed in its best light, suggests her own prior sworn statements of intent are no longer true. Candidate Morris does not deny the filings in any way. And, Candidate Morris submits no declaration or affidavit herself. Second, a review of the attachments in context with the other sworn and unsworn information in this Mandamus Record amply and graphically demonstrates why the Legislature forbade this exercise in connection with the ministerial duty to declare a candidate ineligible. Accepting Candidate Morris’s unsworn letter or the other attachments for any purpose placed matters outside of the public record before County Chair Schechter for no other purpose than to find facts in violation of the statutory mandate. See Weatherly, 153 Tex. 481, 271 S.W.2d 938.

Indeed,

considering those documents required County Chair Schechter to consider credibility – where credibility is reserved for juries in quo warranto proceedings or election contests. See Tex. Civ. Prac. & Rem.Code Ann. § 66.001–.003 (West 2008) (governing quo warranto proceedings); Tex. Elec. Code Ann. §§ 221.002–.004 (West 2010) (governing election contests). For her to consider those documents placed County Chair Schechter in a position the Legislature never intended, free forming over whether to (a) blindly accept Candidate Morris’s unsworn statement 33

or (b) place Candidate Morris’s unsworn statement on equal footing with public documents that conclusively establish the opposite. In short, this record review demonstrates that, even if County Chair Schechter could have become the evidentiary arbiter of whether Candidate Morris intended to reside in Fort Bend County at any time after November 2018, she could not have found her eligible therefrom. The sole item in the voice of Candidate Morris is a letter explaining her varying intentions, her reservations, and her “buyer’s remorse.” MR 4, Attachment G. Candidate Morris neither attempts, as requested by County Chair Schechter, nor even tries to make a showing that the 2018 “public records described above are untrue.” MR 2. Relator turns to an examination of the “evidence” Candidate Morris did submit and does so within the framework of the actual legal inquiry: In light of the conclusive evidence of Candidate Morris’s sworn intent to reside – and that she did reside – in Fort Bend County during November and December, 2018, is there a public record that demonstrates Candidate Morris resided in Harris County continuously throughout the two-year period before the November 3, 2020, General Election? There is not. • Attachment A is a Seller’s Temporary Residential Lease and Amendment to Contract Concerning Property. Attachment A is not a public document. Even if County Chair Schechter could properly consider this attachment on the 34

question of residency, and even if the attachment is given the broadest inferences as though County Chair Schechter had discretion to weigh evidence, this “temporary leaseback” of the Fort Bend property to the sellers ended – according to Candidate Morris’s counsel – on December 8, 2018. The attachment does not vest County Chair Schechter with any authority to ignore Candidate Morris’s sworn statement that she began occupying the property as her “residence” on November 8, 2018. • Attachment B is copies of two personal checks of Adolph R. Morris, Sr., Candidate Morris’s father. Attachment B is not a public document. Even if County Chair Schechter could properly consider this attachment on the question of residency, and even if the attachment is given the broadest inferences as though County Chair Schechter had discretion to weigh evidence, this evidence of “repairs” to Candidate Morris’s Fort Bend home does not even purport to address the issue of Morris’s residence. • Attachment C is the “To Whom It May Concern” Affidavit of Raven Anderson. Attachment C is not a public document. Even if County Chair Schechter could properly consider this attachment on the question of residency, and even if the attachment is given the broadest inferences as though County Chair Schechter had discretion to weigh evidence, Ms. Anderson’s affidavit speaks only to two points in time: December, 2018, and 35

August, 2019. Indeed, this affidavit does not say that she agreed to and did rent Candidate Morris’s Fort Bend home at any point. She speaks only of her “living situation” and terms of rental that “she would” find reasonable; but she does not even state the address of the “house in the area” that her longtime friend discussed with her. On the precise point at issue, Ms. Anderson does not state a single fact about Candidate Morris’s residency in December, 2018, or August, 2019. • Attachment D is an Inquiry of Voter Registration Database and Voting History. Attachment D is not a public document. Even if County Chair Schechter could properly consider this attachment on the question of residency, and even if the attachment is given the broadest inferences as though County Chair Schechter had discretion to weigh evidence, this attachment establishes more against Candidate Morris’s 2018-2019 Harris County residency than in support of it. Attachment D purports to show: (a) Candidate Morris originally registered to vote in Harris County in 2013 at a Teal Forest address; (b) re-registered to vote in Harris County in August, 2015 at an Atwood Hills address; (c) again re-registered to vote in Harris County at a Rogerdale address in September, 2015; and (d) has not voted in Harris County since November, 2018. If Ms. Morris was actually a legal resident of

Harris County, why did she not vote in the March, 2020, Democratic Primary when she was a candidate? • Attachment E is the “To Whom It May Concern” Letter from Adolph Morris, Candidate Morris’ father. Attachment E is not a public document. Aside from the obvious flaw that Mr. Morris purports to supply the “sworn” intent of Candidate Morris while relieving Candidate Morris of the burden of oath, Mr. Morris’s statements say nothing about (a) his daughter’s sworn November statements; or (b) her November, 2018, intent. Though speculating on intent, Mr. Morris declines to speculate whether Candidate Morris resided in Fort Bend County at her home at any time prior to, during, or after January 2019, and certainly does not attempt to rule it out. Further, Mr. Morris does not explain his apparent association of the fact that Candidate Morris lived “primarily” with him from January 2019 with the fact immediately following that Candidate Morris not only had doctor’s appointments but needed occasional accompaniment to such appointments.

In other words, Mr.

Morris’s statements barely raise an inference that Candidate Morris may have stayed with her father to facilitate her doctor’s appointments. And, though Mr. Morris states that he and Candidate Morris decided “it would be best to lease the house,” he does not state that Candidate Morris did, in fact, lease the house – notwithstanding his discussion of the visits the putative tenant, Ms. 37

Williams, made to his home. Even if County Chair Schechter could consider the document, it is silent about Candidate Morris’s sworn public documents or whether such documents are true or untrue, as requested by County Chair Schechter. • Attachment F is a December 2018 Move Out Inspection for a Rogerdale address. Attachment F is not a public document. Even if County Chair Schechter could consider the document, the most the document could establish is the move-out condition of an apartment Candidate Morris leased in Harris County until December 2018. Candidate Morris’s post rental residency is not mentioned in the attachment. Indeed, Candidate Morris’s residency at Rogerdale is neither confirmed nor denied. • Attachment G is a typed letter from Brittanye Morris to Lillie Schechter. Attachment G is not a public document. Attachment G is not a sworn statement. Even if County Chair Schechter could consider the document and pretended that it was sworn or verified, it would still not show the Relatorfiled “public records to be untrue.” For example, Candidate Morris states that she “was domiciled and intended to be domiciled in Harris County as I have been since 2013.” If the letter has any evidentiary value, Candidate Morris’s actions nonetheless speak louder than her unsworn statement and betray the veracity of the statement: 38

Date November, 2018

November, 2018

December, 2019

Candidate Morris’s Statements Regarding Residency: Sworn Statement to obtain Fort Bend Residential Homestead Exemption: Do you own and live in the [Fort Bend] property for which you are seeking this residence homestead exemption? Yes Tax Year: 2018-2019

Sworn Covenant to obtain $210,861.00 in financing for a Fort Bend Property: Borrow shall occupy, establish, and use the [Fort Bend] property as Borrower’s principal residence within 60 days after the execution of this Security Instrument, and shall continue to occupy the Property as Borrower’s principal residence for at least one year after the date of occupancy, unless Lender determines that this requirement shall cause undue hardship for the Borrower or unless extenuating circumstances exist which are beyond Borrower’s control. Sworn statement to obtain a position on the November, 2020 General Election Ballot: Length of Residence As of Date of Application Sworn in Territory/District/Precinct: 6 years. (December 2013 to December 2019)

Candidate Morris’s Actions Regarding Residency: Actions supporting the statement: Bought the Fort Bend Home Paid the Fort Bend Taxes Requested the Fort Bend Driver’s License Actions defeating the statement: None. Candidate Morris has taken no step and made no statement (sworn or otherwise) to suggest her statement was false when made. Actions supporting the statement: Bought the Fort Bend Home Paid the Fort Bend Taxes Requested the Fort Bend Driver’s License Actions defeating the statement: None. Candidate Morris has taken no step and made no statement (sworn or otherwise) to suggest her statement was false when made.

Actions supporting the statement: None. Candidate Morris applied for Harris County driver’s licenses during this period but did not hold a Harris County driver’s license continuously for six years. Actions defeating the statement: Candidate Morris applied for a Fort Bend County driver’s license in 2018. Candidate Morris applied for a

April, 2020

Montgomery County driver’s license in 2015 Unsworn, undated letter proffered Actions supporting the statement: to avoid ballot ineligibility: None. Candidate Morris proffers nothing to show actions consistent I was domiciled and intended to be domiciled in Harris County as with continuous Harris County domicile since 2013. I have been since 2013. Actions defeating the statement: Candidate Morris applied for a Fort Bend County driver’s license in 2018. Candidate Morris applied for a Montgomery County driver’s license in 2015

Candidate Morris’s residence in both Fort Bend County and Montgomery County during the 2013 – present timeframe is evident. County Chair Schechter was not allowed to engage in this credibility debate and Relator was not required, to trigger the Tex. Elec. Code § 145.003(f), to muster the weight of the credible evidence. Still, the above review illustrates the folly of the course County Chair Schechter embarked upon. The Legislature limited the review to “public records.” Tex. Elec. Code § 145.003(g). The Legislature established the evidentiary benchmark: “conclusive.” Tex. Elec. Code § 145.003(f). And, the Legislature set the ministerial duty – “shall declare the candidate ineligible.” Tex. Elec. Code § 145.003(g). The Legislature’s purpose in adopting this policy of having the party officer engage in a four-corners, ministerial analysis is evident: A candidate cannot defeat, 40

impeach, or explain away a conclusive public document by simply making a statement contrary to her own prior sworn statements. In an election contest, a jury would be free to consider all of the admissible items in this Mandamus Record, along with the parties’ testimony. A jury would be able to assess, among other things, Candidate Morris’s credibility when making disparate and evolving statements about her residence intentions. And, a jury would be asked to resolve a fact dispute. The Election Code does not give County Chair Schechter either the right to attempt to create a fact dispute when the facts are conclusively established, or the authority to resolve a factual dispute that does not exist.

Having determined that the public records conclusively established

ineligibility, County Chair Schechter’s analysis was complete. Mandamus should issue to compel her to discharge the ministerial duty and declare Candidate Morris ineligible. D.

No Adequate Remedy on Appeal if this Court Does not Grant Mandamus Relief.

The Legislature provided for a Petition for Writ of Mandamus to correct a departure from the ministerial duty of Tex. Elec. Code §§ 145.003(g). See Tex. Elec. Code Ann. § 273.061. On mandamus, petitioner must ordinarily establish that its alternate appellate remedies are inadequate, based upon a balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (citing Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 41

(Tex.2004)). No appellate court entertaining a Petition for Writ of Mandamus in this context has discussed whether such a show must be made. However, there is not only no adequate remedy by appeal of a public official’s departure from its ministerial duty under Tex. Elec. Code §§ 145.003(g), there is no appeal whatsoever. Mandamus is the only remedy. CONCLUSION County Chair Schechter had three public records before her at the time she made her provisional Tex. Elec. Code §§ 145.003(f) declaration of ineligibility on March 21, 2020. She correctly found those sworn public records conclusive of residency. Because Candidate Morris neither submitted public records or her own nor assailed the three conclusive public records, County Chair Schechter had the same three public records before her when she made her final declaration of eligibility, and no others. County Chair Schechter did not alter her conclusion or declaration that those public documents were conclusive of residency, because they are conclusive. Instead, she engaged in a fact-finding mission disallowed by the Election Code. County Chair Schechter abrogated her ministerial statutory duty to declare Candidate Morris ineligible. For the foregoing reasons, Relator requests that the Court grant his Petition and compel County Chair Schechter to declare Candidate Morris ineligible. 42

Respectfully submitted, By:_/s/ Steve Kherkher________________ Bob Wynne State Bar No. 24060861 BWynne@kherkhergarcia.com Eric A. Hawley State Bar No. 24074375 EHawley@kherkhergarcia.com Steven J. Kherkher State Bar No. 11375950 Skherkher-team@kherkhergarcia.com KHERKHER GARCIA, LLP 801 Travis St., Ste. 2175 Houston, Texas 77002 (713) 333-1030 (telephone) (713) 333-1029 (facsimile) ATTORNEYS FOR RELATOR

CERTIFICATE OF SERVICE A true and correct copy of this Petition for Writ of Mandamus has been forwarded to all counsel of record by delivering a true and correct copy to them by electronic delivery on April 20, 2020. /s/ Steve Kherkher Steve Kherkher

RULE 52.3(j) CERTIFICATION In compliance with Rule 52.3(j) of the Texas Rules of Appellate Procedure, I certify that I have reviewed this Petition for Writ of Mandamus and concluded that every factual statement in the Petition is supported by competent evidence included in the Appendix or the Record. /s/ Steve Kherkher Steve Kherkher

CERTIFICATE OF COMPLIANCE In compliance with Rule 9.4 of the Texas Rules of Appellate Procedure, I certify that this Petition for Writ of Mandamus complies with the word and page limitations of Tex. R. App. P. 9.4(i)(2) because it contains 9,300 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1) and was generated in Microsoft Word in 14-point font. /s/ Steve Kherkher Steve Kherkher

Certificate Regarding Local Rule Notice of and Assignment of Related Case in Original Proceedings As required by the Local Rules Relating to Assignment of Related Cases to and Transfers of Related Cases between the First and Fourteenth Courts of Appeals, I certify that no related appeal or original proceeding has been previously filed in either the First or Fourteenth Court of Appeals. /s/ Steve Kherkher