in Re David Palmer

Opinion

Concurring Opinion Filed February 23, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00106-CV

IN RE DAVID PALMER, Relator

Original Proceeding from the City of Irving Dallas County, Texas

CONCURRING OPINION Opinion by Justice Schenck I join my colleagues in the result in this case, though I may do so on somewhat

narrower grounds. I write separately to express my concern that prior panel

precedent, In re Cullar, which controls our treatment of writ applications in election

matters and reflects our practices in writ matters generally, applied a standard that is

too restrictive. 320 S.W.3d 560 (Tex. App.—Dallas 2010, orig. proceeding).

In Cullar, this Court held that the failure to include an exhibit in the appendix

accompanying a petition for writ of mandamus demonstrating that a request to

remove a candidate from the election ballot had been made to and refused by the

election official was fatal to the petition itself. Id. at 568. Thus, where the fact of

the request and denial is referenced in the petition, but not proved by the mandamus record, we are obliged to deny the petition, rather than treating the omission as a

defect that may be cured. Cf. TEX. R. APP. P. 44.3 (governing defects related to “an

appeal”). Our mandamus jurisprudence treats the absence of proof of the request

and refusal as necessary to the processing of the petition, rather than a matter of form

that might be rectified by a telephone call and supplementation of the record, for

example.

Putting aside any question over the application of Rule 44.3 in the mandamus

context, I note that Rule 52.3(k) speaks explicitly to the contents of the appendix,

separating what is “necessary” from what is “optional” in the process. TEX. R. APP.

P. 52.3(k). I do not see our practice in Cullar, insofar as it relates to urgent election

matters (or any other cases), listed among those matters that are “necessary.” As I

have expressed concern elsewhere over our election jurisprudence lacking both the

alacrity and the force to permit us to acquit ourselves of the serious task that lies

before the state courts, particularly after the Supreme Court’s decision in Shelby

County, Alabama v. Holder, 570 U.S. 529 (2013), I will not repeat them here.1 As

this panel is bound by Cullar, I concur in the result.

1 In re Bishop, No. 05-18-01333-CV, 2020 WL 1074583, at *11 (Tex. App.—Dallas March 6, 2020, orig. proceeding) (Schenck, J., concurring) (expressing concern that revision of election primary date combined with under-developed mootness principles has resulted in Election Code being substantively unenforced by Texas appellate courts for several decades); Bickham v. Dallas Cty., 612 S.W.3d 663, 677– 79 (Tex. App.—Dallas 2020, pet. filed) (Schenck, J., dissenting) (expressing concern over holding that poll watchers lack standing to complain of obstruction of ability to observe). –2– Separately, I understand the petition here to be subject to a second, more

substantive deficiency that may be said to compel denial—that the decision whether

to include or exclude candidate Webb from the ballot is discretionary, rather than

ministerial. As I understand the challenge here, it relates to the fact of Webb’s prior

service as a member of the city council and by the dates of that service. As both of

these matters are addressed by the governing substantive law and, insofar as any

court proceedings are concerned, would be subject to resolution by judicial notice of

the public record of the service and the calendar, I do not believe that a local election

official would be empowered as a matter of discretion to ignore either. Willis v.

Potts, 377 S.W.2d 622 (Tex. 1964) (granting mandamus based on allegations in

petition and operative constitutional and statutory provisions). The conduct of our

elections in accordance with the rules laid down in advance of their happening is not

a matter for local discretion, as I understand it, and our courts should be open and

available on a timely basis to assure compliance. See Bickham v. Dallas Cty., 612

S.W.3d 663, 676 (Tex. App.—Dallas 2020, pet. filed) (Schenck, J., dissenting).

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

210106CF.P05

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