With today’s orders list, the Texas Supreme Court issued a per curiam opinion explaining its March 28th order in the Palomo elections case.

In re Rebecca Ramirez Palomo, No. 12-0208 (per curiam)

On March 28th, the Texas Supreme Court ordered that a judicial candidate (Rebecca Ramirez Palomo) be returned to the primary ballot. I wrote a short post about the order, which was accompanied by the notation “Opinion to follow.”

Today, the Court is issuing that opinion (PDF). (( You may be wondering, “When does the clock start for rehearing? Do you have to file a motion for rehearing before you know the Court’s reasoning?” According to Rule 64.1, the clock starts “when the Court renders judgment,” so that would be March 28th. The docket shows that the real party in interest filed a motion to extend time within the time permitted, and the Court had granted that motion before issuing this opinion. ))

This case grows out of a judicial election in Webb County. One of the candidates for a district court seat, Fernando Sanchez, objected to the eligibility of his opponent, Rebecca Ramirez Palomo, arguing that she had not (as required) been a practicing lawyer for the four years preceding the November 2012 election date. Sanchez noted that Palomo had briefly claimed an exemption from mandatory continuing legal education (MCLE) requirements. The local county party chair refused to remove Palomo from the ballot.

Sanchez sought a writ of mandamus in the court of appeals. The court of appeals granted that relief, ordering the party official to remove Palomo’s name from the ballot. The heart of the court of appeals’s reasoning was that Palomo was ineligible to practice until the time that she actually notified the state bar that she intended to reassume her MCLE responsibilities. Because that notice was sent within the four-year window, the court concluded that the public records conclusively established that she was not eligible.

The Texas Supreme Court disagreed about whether this notice to the bar should be given dispositive weight. The Court explained that attorneys report their MCLE status only at the end of the relevant year. Before that time, they can change their mind about whether or not they intend to do the hours: “A lawyer might claim the non-practicing exemption early in the compliance year, fully intending not to practice, yet change her mind before the compliance deadline, withdraw the claim, and complete all MCLE requirements for the year. Or a lawyer can wait until the compliance deadline — or perhaps even later — to claim an exemption from MCLE for the preceding year. All that matters is whether the lawyer is entitled to an exemption from MCLE requirements by the deadline for completion.”

Thus, unlike other types of “inactive” status, an attorney does not need to formally notify the bar in advance to resume active status after an MCLE exemption. For that reason, the Court held, the date on Palomo’s letter to the bar does not control this question.

Instead, the Court reviewed the other public records and concluded that they did not meet the heavy burden of “conclusively” showing that Palomo was ineligible during the four years preceding the general election in November 2012. The Court explained that Palomo probably did not intend to claim an exemption for the year ending October 2009 at all (“a year in which she actually met her MCLE requirements”) but instead for the previous year ending October 2008, which would not affect her eligibility for this election. (( Palomo’s birthdate falls in November, so her compliance year ends on October 31. ))