NO. 12-20-00117-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BOBBY GARMON,
APPELLANT

§

APPEAL FROM THE 241ST

§

JUDICIAL DISTRICT COURT

§

SMITH COUNTY, TEXAS

V.
MICHAEL TOLBERT, CHAIR OF
THE SMITH COUNTY DEMOCRATIC
PARTY AND WILLIE MIMS,
APPELLEES

OPINION
Bobby Garmon appeals the denial of a permanent injunction that would have prevented
Willie Mims from being declared the winner of a primary election and would have required a
runoff election. He presents two issues on appeal. We reverse and render.

BACKGROUND
Garmon, Mims, and Curtis Traylor are Democratic candidates seeking the Democratic
nomination for the office of Constable of Precinct 1 for Smith County on the November 2020
general election ballot. There is no Republican candidate. To secure a place on the primary ballot,
each candidate was required to file an application accompanied by either a filing fee or petition
with Michael Tolbert, the chair of the Smith County Democratic Party, by December 9, 2019. If
the application was accompanied by a petition, the petition needed to include valid signatures from
at least two-hundred registered voters from Precinct 1. Just before the filing deadline, Mims filed
such an application on December 9, purportedly accompanied by two-hundred twelve signatures.
On December 20, Garmon filed a challenge to Mims’s application arguing that the petition
failed to include at least two-hundred valid signatures. Specifically, Garmon complained that
Mims’s application was defective because the petition contained signatures that were not

 accompanied by the signer’s date of birth or voter registration number, signatures that were not
accompanied by the date, and signatures of individuals who were not registered to vote in Precinct
1. In his challenge, Garmon asked Tolbert to reject Mims’s application and prohibit him from
inclusion on the Democratic primary ballot. Tolbert performed an independent investigation and
determined that Mims’s petition lacked the appropriate number of valid signatures. Tolbert
notified Mims of Garmon’s challenge on December 23. Tolbert also informed Mims that he agreed
with Garmon’s allegations. However, Tolbert did not officially reject the application or prevent
Mims from appearing on the ballot.
On January 9, 2020, Garmon filed a lawsuit challenging Mims’s application and Tolbert’s
refusal to remove Mims from the ballot. Garmon sought a temporary restraining order as well as
temporary and permanent injunctions, prohibiting Mims’s name from appearing on the Democratic
primary ballot and/or prohibiting Tolbert from certifying Mims as the Democratic nominee if he
were to win in the primary. On January 16, Garmon received notice that Judge Jack Skeen, Jr.,
Judge of the 241st District Court, recused himself and that Judge Jim Parsons, retired Judge of the
3rd District Court, would preside over the case. The hearing on the temporary injunction would
not be held until January 21, three days after the overseas and military absentee ballots were to be
mailed.
On January 20, Garmon amended his petition to eliminate his request that Mims be
removed from the primary ballots. The amended petition sought (1) temporary and permanent
injunctions prohibiting Tolbert from certifying Mims as the Democratic nominee in the event he
received a majority of votes in the primary, and (2) equitable relief to cure election code violations.
Following the January 21 hearing, Judge Parsons found that Mims’s petition did not contain at
least two-hundred valid signatures as required by the Texas Elections Code. Judge Parsons entered
a temporary restraining order enjoining Tolbert from certifying Mims as the Democratic nominee
for Precinct 1 Constable, in the event he received a majority of votes in the primary election, until
a final judgment could be rendered. A permanent injunction hearing was set for March 12.
The Democratic primary concluded on March 3 with the following results: Mims received
51.2 percent of votes; Garmon received 38.37 percent of votes; and Traylor received 10.43 percent
of votes. Because of the temporary injunction, Tolbert could not certify Mims as the Democratic
nominee. During the March 12 hearing, Garmon asked Judge Parsons to order a runoff election
between Garmon and Traylor. Garmon explained that a runoff election would constitute equitable
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 relief that would cure the election code violations. He further explained that a runoff was required
for the offices of President, U.S. Senator, and Railroad Commissioner. Judge Parsons
acknowledged that the undisputed evidence showed Mims should not have been on the ballot and
that Tolbert stated in his pleadings that a runoff would be an available remedy because a runoff
was necessary for other offices. At the conclusion of the hearing, Judge Parsons granted a
permanent injunction preventing Tolbert from certifying Mims as the Democratic nominee for
Precinct 1 Constable and ordered that a runoff between Garmon and Traylor be included in the
Democratic primary runoff election. Judge Parsons requested Garmon prepare a final judgment
for his signature. However, Judge Parsons subsequently entered a final judgment contradicting
his oral pronouncement. The written final judgment dismissed Garmon’s suit on grounds that his
complaints were rendered moot when the overseas and military absentee ballots were mailed in
January.
On March 20, Governor Greg Abbott issued a proclamation postponing the primary runoff
election from May 26 to July 14. As a result, overseas and military absentee ballots will be mailed
on May 30. This appeal followed. 1

MOOTNESS
In his second issue, Garmon urges Judge Parsons erred by determining that the case was
moot because the primary ballots had been mailed in January. We address this jurisdictional issue
first.
Standard of Review and Applicable Law
Subject-matter jurisdiction concerns a court’s power over cases. Reata Constr. Corp. v.
City of Dallas, 197 S.W.3d 371, 379 (Tex. 2006) (Brister, J., concurring). “Subject-matter
jurisdiction is essential to a court’s power to decide a case.” City of Houston v. Rhule, 417 S.W.3d
440, 442 (Tex. 2013) (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex.
2000)). “It stems from the doctrine of separation of powers, and aims to keep the judiciary from
encroaching on subjects properly belonging to another branch of government.” Reata, 197 S.W.3d

1

Mims previously filed an appeal from the temporary injunction ruling but filed a motion to dismiss the
appeal after the final judgment was signed. This Court granted the motion and dismissed the appeal. See Mims v.
Garmon, No. 12-20-00046-CV, 2020 WL 1933598 (Tex. App.—Tyler Apr. 22, 2020, no pet.) (mem. op.) (per
curiam).

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 at 379. Subject-matter jurisdiction is a question of law we review de novo. City of Houston, 417
S.W.3d at 442.
“The mootness doctrine implicates subject-matter jurisdiction.” In re Smith County, 521
S.W.3d 447, 453 (Tex. App.–Tyler 2017, orig. proceeding). An appeal is moot when a court’s
action on the merits cannot affect the parties’ rights. VE Corp. v. Ernst & Young, 860 S.W.2d 83,
84 (Tex. 1993). “Appellate courts are prevented from deciding moot controversies.” Nat’l
Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). “This prohibition is rooted in the
separation of powers doctrine in the Texas and United States Constitutions that prohibit courts
from rendering advisory opinions.” Id. The distinctive feature of an advisory opinion is that it
decides an abstract question of law without binding the parties. Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Texas courts have no jurisdiction to render an
advisory opinion. Id.
Under the elections code, an application for a place on the general primary election ballot
may not be challenged for compliance with the applicable requirements as to form, content, and
procedure after the 50th day before the date of the election for which the application is made. TEX.
ELEC. CODE ANN. § 172.0223(b) (West 2020). The balloting materials for voting by mail shall be
mailed to voters on or before the forty-fifth day before election day. See id. § 86.004(a), (b) (West
2020).
Analysis
It is well established that “a contest as to the candidacy of an individual must be dismissed
as moot where the contest cannot be tried [and] a final decree issued in time for it to be complied
with by election officials.” Law v. Johnson, 826 S.W.2d 794, 797 (Tex. App.–Houston [14th Dist.]
1992, no pet.); see also Smith v. Crawford, 747 S.W.2d 938, 940 (Tex. App.–Dallas 1988, no pet.)
(“[t]he established rule is that where a contest between candidates for nomination in a party
primary election cannot be tried and a final decree entered in time for substantial compliance with
pre-election statutes by officials charged with the duty of preparing for the holding of the election,
the courts must dismiss the contest as being moot[ ]”). The case is moot once it becomes “too late
to invalidate a candidate and print new absentee ballots in time for the beginning of the casting of
ballots.” Law, 826 S.W.2d at 797. “[C]onstraints on our action are determined by the election
schedule.” In re Meyer, No. 05-16-00063-CV, 2016 WL 375033, at *4 (Tex. App.–Dallas Feb. 1,
2016, orig. proceeding) (mem. op.).
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 Garmon filed his lawsuit on January 9, which was more than fifty days before the election.
As a result, his challenge was timely under the Texas Elections Code. See TEX. ELEC. CODE ANN.
§ 172.0223(b). Furthermore, Garmon’s lawsuit was filed nine days before the primary ballots
were to be mailed out. By no fault of his own, a hearing on the temporary injunction was not held
until after the deadline for mailing the military and absentee ballots. In addition, the relief
requested by Garmon was not limited to removing Mims’s name from the ballot. Garmon also
requested the trial court prevent Tolbert from certifying Mims as the Democratic candidate for
Smith County Constable for Precinct 1. This distinction is paramount.
Equitable relief in an election contest becomes moot “where the contest cannot be tried
[and] a final decree issued in time for it to be complied with by election officials.” Law, 826
S.W.2d at 797; In re Lopez, 593 S.W.3d 353, 357 (Tex. App.—Tyler 2018, orig. proceeding).
Mims and Tolbert argue that this means all equitable remedies are rendered moot after the primary
election absentee ballots are mailed. We disagree.
Unlike our previous opinion in Lopez and the cases cited therein, Garmon’s lawsuit did not
simply seek to remove Mims’s name from the primary election ballot. Garmon sought equitable
relief in the form of a runoff election between the two candidates from whom the voters should
have chosen.

Furthermore, the Texas Supreme Court has allowed challenges to candidate

applications to proceed following primary elections without rendering them moot. See In re
Angelini, 186 S.W.3d 558, 561 (Tex. 2006) (orig. proceeding). In Angelini, a Republican
candidate for the Fourth Court of Appeals asked the Supreme Court to order the State Chair of the
Texas Democratic Party to prohibit the Democratic candidate from appearing on the November
general election ballot. Id. at 559. The challenge was based on form, substance, and procedure of
the application. Id. at 561. The Supreme Court denied the application, determining that several
factual disputes remained. Id. at 560. In doing so, the Supreme Court expressly noted that “there
should be ample time before the general election in November for a trial court to make its findings,
and for any appellate review to be conducted first in the court of appeals rather than this Court.”
Id. at 561. Therefore, the Supreme Court necessarily concluded that the availability of equitable
relief is not automatically rendered moot when the primary election absentee ballots have been
mailed, or even the entire primary election has been held. As such, the deadline contained in
Section 172.0223 is merely a deadline for filing a challenge to a candidate’s application. The
Supreme Court implicitly held that a challenge can continue even after the absentee ballots have
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 been mailed as long as the equitable relief sought does not interfere with the election schedule.
See id.
Further, the only limitation on a court’s authority to grant injunctive relief is the election
schedule itself. See In re Gamble, 71 S.W.3d 313, 318 (Tex. 2002) (orig. proceeding); Sachtleben
v. Bennett, No. 14–10–00322–CV, 2010 WL 3168395, at *2 (Tex. App.—Houston [14th Dist.]
Aug. 12, 2010, no pet.) (mem. op.) (per curiam); Risner v. Harris Cty. Republican Party, 444
S.W.3d 327, 336–37 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
This case encompasses a very unique factual scenario. The primary runoff election has
been postponed by gubernatorial proclamation until July 14. Therefore, the absentee ballots must
be mailed by May 30. Because Garmon seeks equitable relief in the form of a runoff between the
two proper candidates, he seeks equitable relief that can be fulfilled without interfering with the
current election schedule. Issuance of an injunction at this point would not interfere with the
November general election. See Sachtleben, 2010 WL 3168395, at *2; Triantaphyllis v. Gamble,
93 S.W.3d 398, 406, 407 (Tex. App.-Houston [14th Dist.] 2002, pet. denied). Accordingly, we
conclude that this matter is not moot. See In re Angelini, 186 S.W.3d at 561; Risner, 444 S.W.3d
at 336-37; Fitch v. Fourteenth Court of Appeals, 834 S.W.2d 335, 337 (Tex. 1992) (orig.
proceeding); Sachtleben, 2010 WL 3168395, at *2; Triantaphyllis, 93 S.W.3d at 406, 407. We
sustain Garmon’s second issue.

DENIAL OF PERMANENT INJUNCTION
Having determined that the controversy before this Court is not moot, we now turn to
Garmon’s first issue, in which he argues that Judge Parsons erred by revoking his oral ruling
providing for a runoff primary election between Garmon and Traylor. In short, Garmon urges that
Judge Parsons should have granted the permanent injunction.
Standard of Review
Permanent injunctive relief may be granted upon a showing of (1) the existence of a
wrongful act, (2) the existence of imminent harm, (3) the existence of irreparable injury, and (4)
the absence of an adequate remedy at law. See Triantaphyllis, 93 S.W.3d at 401; Jim Rutherford
Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex. App.—Houston [14th Dist.]
2000, pet. denied). Further, a court determining the appropriateness of a permanent injunction

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 should balance the competing equities, including the public interest. See In re Gamble, 71 S.W.3d
at 317; Triantaphyllis, 93 S.W.3d at 401–02.
In an appeal from the denial of a permanent injunction, we apply an abuse of discretion
standard. See Fort Bend Cty. Wrecker Ass’n v. Wright, 39 S.W.3d 421, 425 (Tex. App.—Houston
[1st Dist.] 2001, no pet.). “A trial court abuses its discretion by (1) acting arbitrarily and
unreasonably, without reference to guiding rules or principles, or (2) misapplying the law to the
established facts of the case.” Triantaphyllis, 93 S.W.3d at 402 (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). But “where the facts conclusively show
that a party is violating the substantive law, the trial court should enjoin the violation, and in such
case, there is no discretion to be exercised.” Terramar Beach Cmty. Ass’n, 25 S.W.3d at 848.
Finally, “[w]e review de novo the trial court’s conclusions of law.” Risner, 444 S.W.3d at 339.
Applicable Law
The Texas Elections Code requires a county chair to “certify in writing for placement on
the general election ballot the name and address of each primary candidate who is nominated for
a county or precinct office.” TEX. ELEC. CODE ANN. § 172.117(a) (West 2020). There is one
exception to this requirement: “A candidate’s name may not be certified if, before delivering the
certification, the county chair learns that the name is to be omitted from the ballot” because “the
candidate withdraws, dies, or is declared ineligible.” Id. §§ 145.035, 172.117(c) (West 2020).
The Texas Elections Code further provides that a “person who is being harmed or is in
danger of being harmed by a violation or threatened violation of this code is entitled to appropriate
injunctive relief to prevent the violation from continuing or occurring.” Id. § 273.081 (West 2020).
And, as discussed above, the determination of a challenge to a candidate’s application may be
made after the primary election, so long as the determination does not interfere with the election
schedule and the challenge was initiated prior to the statutory deadline for bringing such a
challenge. See id. § 141.034(a) (West 2020); In re Gamble, 71 S.W.3d at 318; Fitch, 834 S.W.2d
at 337; Sachtleben, 2010 WL 3168395, at *2; Triantaphyllis, 93 S.W.3d at 406-07; Risner, 444
S.W.3d at 336-37.
A candidate for a place on the primary election ballot for the position of Constable in Smith
County must submit a valid application and either a filing fee or petition containing at least twohundred valid signatures. See TEX. ELEC. CODE ANN. §§ 172.021, 172.025(b)(2) (West 2020).

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 Analysis
None of the parties argue that Mims was rightfully on the ballot. Furthermore, neither
Mims nor Tolbert challenges Judge Parson’s findings at either the temporary injunction hearing or
the permanent injunction hearing. As previously stated, following the temporary injunction
hearing, Judge Parsons found that the petition accompanying Mims’s application did not contain
at least two-hundred valid signatures from registered voters of Smith County Precinct 1 as required
by the Texas Elections Code. As a result, Judge Parsons granted Garmon’s request for a temporary
injunction, enjoining Tolbert from certifying Mims’s name for the November general election
ballot. And in the final judgment at issue here, Judge Parsons made the following fact finding:

6. [On] January 8, 2019 the Smith County Election Administrator, Ms. Karen Nelson, found
thirty-two individuals who signed Mr. Mims’ petition were not registered to vote in Smith County.
She also found twenty-eight were not registered in Precinct 1.

Mims’s application was accompanied by a petition purportedly containing two-hundred twelve
signatures. Taking into account the signatures that were not from Smith County or Precinct 1
registered voters, Mims’s petition contained less than the statutorily mandated number of
signatures. Thus, as of the December 9, 2019 filing deadline, Mims’s application did not meet the
statutory requirements for a valid application.
For this reason, Mims’s name appeared on the Smith County Democratic Party’s primary
election ballot in violation of the Texas Elections Code. And should Mims’s name be certified for
inclusion on the November 2020 general election ballot, his name would appear on that ballot in
violation of the Texas Elections Code. See TEX. ELEC. CODE ANN. §§ 141.031, 141.032(c), (d),
141.062, 141.063, 141.065, 172.021(a), (e), 172.029(d) (West 2020). Garmon, a candidate with a
valid application for Smith County Constable Precinct 1, has been harmed by this violation by
facing an opponent who has been included on the ballot in violation of the code. See id. § 273.081.
Garmon has no adequate remedy at law to redress this injury other than a permanent injunction.
Furthermore, the only equitable remedy that would allow Smith County Precinct 1 voters to choose
between the proper candidates is to add Precinct 1 Constable to the primary runoff ballot.
Judge Parsons granted temporary injunctive relief but denied Garmon’s request for
permanent injunctive relief after finding that it lost jurisdiction. As discussed above, this finding
was in error. Under Section 273.081 of the Texas Elections Code, Garmon is entitled to injunctive
8

 relief. Accordingly, we conclude that under the circumstances of this case, Judge Parsons had no
discretion to deny Garmon’s petition for permanent injunction and abused his discretion by doing
so. We sustain issue two.

DISPOSITION
Having sustained Garmon’s two issues, we reverse the judgment dismissing Garmon’s
lawsuit and we render judgment granting Garmon’s request for a permanent injunction enjoining
Tolbert from certifying Mims as the Democratic nominee for Smith County Constable Precinct 1
for the November 2020 general election ballot. We further order that a runoff primary election
between Garmon and Traylor be included on the Smith County Democratic primary runoff ballot
for July 14.
We direct the Clerk of this Court to issue the mandate immediately. See TEX. R. APP. P.
18.1(c). Because of the time constraints on this action, we will entertain no motion for rehearing.

JAMES T. WORTHEN
Chief Justice

Opinion delivered May 21, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

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 COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT
MAY 21, 2020

NO. 12-20-00117-CV
BOBBY GARMON,
Appellant
V.
MICHAEL TOLBERT, CHAIR OF THE SMITH COUNTY
DEMOCRATIC PARTY AND WILLIE MIMS,
Appellees
_____________________________________________________________________________
Appeal from the 241st Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 20-0071-C)
_____________________________________________________________________________
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment as entered by the court below and that the same should be reversed and rendered.
It is ORDERED, ADJUDGED and DECREED by this Court that the judgment of the trial court
dismissing Appellant’s lawsuit in favor of Appellees, MICHAEL TOLBERT, CHAIR OF THE
SMITH COUNTY DEMOCRATIC PARTY AND WILLIE MIMS, be, and the same is, hereby
reversed and judgment is rendered granting Garmon’s request for a permanent injunction
enjoining Tolbert from certifying Mims as the Democratic nominee for Smith County Constable
Precinct 1 for the November 2020 general election ballot and ordering that a runoff primary
election between Garmon and Traylor be included on the Smith County Democratic primary runoff
ballot for July 14. All costs in this cause expended both in this Court and the trial court below be,
and the same are, adjudged against the Appellees, MICHAEL TOLBERT, CHAIR OF THE
SMITH COUNTY DEMOCRATIC PARTY AND WILLIE MIMS; for which let execution
issue; and that this decision be certified to the court below for observance.
10

 James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

11