Hoot v. Brewer

640 S.W.2d 758, 1982 Tex. App. LEXIS 5095
CourtCourt of Appeals of Texas
DecidedSeptember 3, 1982
Docket01-82-0583-CV
StatusPublished
Cited by15 cases

This text of 640 S.W.2d 758 (Hoot v. Brewer) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoot v. Brewer, 640 S.W.2d 758, 1982 Tex. App. LEXIS 5095 (Tex. Ct. App. 1982).

Opinions

OPINION

DUGGAN, Justice.

This is an original mandamus proceeding in this court wherein relator seeks a writ of mandamus to compel the respondent, who is the County Judge of Brazoria County, Texas, to certify to the County Clerk of Brazo-ria County, Texas, relator’s name to be put on the general election ballot in November, 1982, as a candidate for the office of County Judge.

The jurisdiction of this court has been invoked pursuant to Tex.Elec.Code Ann. art. 13.41 (Vernon Supp.1982) and Tex.Rev. [760]*760Civ.Stat.Ann. arts. 1735a and 1823. The jurisdictional requirements have been demonstrated.

Relator’s position may be summarized briefly as follows: He maintains that he has met the statutory requirements for having his name printed on the official ballot for the general election in November, 1982, in the column for independent candidates. He maintains further that he has complied with Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) by a) providing the County Judge with his Notice of Intent to Run as an Independent Candidate within the time frame allowed under Tex.Elec.Code Ann. art. 13.12 (Vernon Supp.1982), and b) providing a written application signed by 686 eligible Brazoria County voters who had not voted in the May 1, 1982 primary election. Relator asserts further that his application exceeded the statutory requirement of 500 eligible voters by 186 signatures, and that each step was performed within the statutory time periods. No primary run-off election for the position of County Judge was required.

Relator asserts further that he has communicated with respondent on five separate occasions between July 12,1982 and date of filing of his application for writ of mandamus with no response out of respondent as to why relator’s name has not been certified. In this connection he says further that unless respondent puts relator’s name on the ballot on or before September 18, 1982, relator may lose his right to run. According to the provisions of Tex.Elec. Code Ann. art. 13.56(f) (Vernon Supp.1982) if relator is declared ineligible before the 44th day before election day (November 2, 1982), his name may not be placed on the ballot. Finally, relator asserts that in the event that respondent decides on the eve of the 44th day prior to election day that relator’s application does not meet the statutory requirements for gaining a place on the ballot, there will be no time for relator to obtain a judicial determination of his right to have his name on the ballot. Regarding the likelihood that this situation could occur, relator points to the fact that, if his name is on the ballot in November, he will be an opponent of the respondent for the very position which respondent now holds.

In response to all of the foregoing respondent’s stance may be summarized briefly as follows:

Before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel. The duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue.

Further, says respondent, the Court of Appeals has no authority to issue writs of mandamus unless the facts are established without dispute.

Provisions of the Election Code concerning the contents of an independent candidate’s application to be placed on the ballot at a general election are mandatory, and must be strictly complied with.

Tex.Elec.Code Ann. art. 13.50, (Vernon Supp.1982) contains the following provisions concerning the requisites of an application of an independent candidate to be placed on the ballot:

Subdivision 4. No application shall contain the name of more than one candidate for the same office; and if any person signs the application of more than one candidate for the same office, the signature shall be void as to all such applications. No person shall sign such application unless he is a qualified voter, and no person who has voted at either the general primary election or the run-off primary election of any party shall sign an application in favor of anyone for an office for which a nomination was made at either such primary election. An application may not be circulated for signatures until the day after the general primary election day, or if a runoff primary election is held for the office sought by the applicant, until the day after the runoff primary election day. A signature obtained before the day an application may be circulated is void.
Subdivision 5. In addition to the person’s signature, the application shall show each [761]*761signer’s address, the number of his voter registration certificate, and the date of signing.

Respondent contends further that the names of those persons who signed relator’s application prior to the date of the primary runoff election are not valid and may not be counted. Respondent’s key position in challenging the sufficiency of the application’s conformity with the requirements of the Election Code is that such requirements are mandatory, that relator must strictly comply, and that the applications must contain a sufficient address. Respondent asserts that 133 of the signatures are invalid because they were obtained before June 6, 1982; further, that 221 more of the signatures are invalid because of incomplete address. Quite obviously, says respondent, the applications contained only 268 valid signatures, far short of the required 500 valid signatures.

Coming to grips now with the crucial points raised in this original proceeding this court compliments counsel for both parties on their able briefs. We recognize first, as respondent urges, that before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel; further, that the duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue. Oney v. Ammerman, 458 S.W.2d 54 (Tex.1970); Bozarth v. City of Denison, 559 S.W.2d 378 (Tex.Civ.App.-Dallas 1977, no writ); Blanchard v. Fulbright, 633 S.W.2d 617 (Tex.App.-Houston [14th Dist.] 1982, no writ). In addition, the authorities are clear that the Courts of Appeals have no authority to issue writs of mandamus unless the facts are established without dispute. Bozarth, supra; Bigham v. Sutton, 565 S.W.2d 561 (Tex.Civ.App.—Austin 1978, no writ); Donald v. Carr, 407 S.W.2d 288 (Tex.Civ.App.-Dallas 1966, no writ). We are mindful also that, whereas provisions of election laws relating to voters are to be construed as directory, the provisions of election laws governing the requirements of candidates are mandatory. McWaters v. Tucker, 249 S.W.2d 80 (Tex.Civ.App.—Galveston 1952, no writ); Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.—Dallas 1976, no writ); Shields Upham, 597 S.W.2d 502 (Tex.Civ.App.-El Paso 1980, no writ).

VALIDITY OF SIGNATURE DATES BEFORE JUNE 6, 1982

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Hoot v. Brewer
640 S.W.2d 758 (Court of Appeals of Texas, 1982)

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640 S.W.2d 758, 1982 Tex. App. LEXIS 5095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoot-v-brewer-texapp-1982.