Texas Democratic Executive Committee v. Rains

756 S.W.2d 306, 31 Tex. Sup. Ct. J. 645, 1988 Tex. LEXIS 102, 1988 WL 86876

• Court: Texas Supreme Court
• Decided: August 24, 1988
• Docket: C-7672
• Status: Published

Opinions

OPINION

GONZALEZ, Justice.

In this mandamus proceeding, the Texas Democratic Executive Committee, along with its Chairman and its nominee, seek to compel the Secretary of State to accept certification of Ron Carr as the Democratic candidate for the unexpired term of Justice Rudolph “Rudy” Esquivel of the Fourth Court of Appeals.. We conditionally grant the writ of mandamus.

The facts in this case are not in dispute. Justice Esquivel submitted his resignation to be effective January 1,1989, to the Governor. The resignation was received on June 21,1988, but the Governor’s appointments secretary informed Justice Esquivel that the Governor would not accept the resignation until November 1988. In turn, the Secretary of State has refused to act on the certification of Ron Carr as the Democratic candidate for Justice Es-quivel’s unexpired term in the November general election. See Tex.Elec.Code Ann. §§ 202.002, 202.006 (Vernon 1988); see also § 145.031 et seq.1 The Secretary of State claims that he has no duty or authority to act on the certification without a “vacancy” in office, and that no vacancy exists unless and until the Governor accepts the resignation. The Relators then brought this mandamus proceeding under Tex. Gov’t Code Ann. § 22.002(c) and Tex.Elec.Code Ann. § 273.061 (Vernon 1988). They contend that, given a resignation written, signed and delivered in compliance with the Code’s requirements, the appropriate authority has no discretion but to accept the resignation. Therefore, for the purposes of triggering the Secretary of State’s duties under the Code, a vacancy exists as a matter of law. See Tex.Elec.Code Ann. §§ 201.-001(a) and 202.023. See also Seay v. Latham, 143 Tex. 1, 182 S.W.2d 251 (1944). We agree.

Title 12 of the Texas Election Code provides for elections to fill vacancies in office. Tex.Elec.Code Ann. §§ 201.001-204.021 (Vernon 1988). A key factor in whether a vacancy is filled by election or appointment, and in how a candidate is nominated, is the time the vacancy is deemed to occur.² For purposes of this title, a vacancy occurs at the times prescribed in §§ 201.021-.023. In particular, § 201.023 provides:

If an officer submits a resignation, whether to be effective immediately or at a future date, a vacancy occurs on the date the resignation is accepted by the appropriate authority.

This section, in turn, must be construed together with § 201.001(a):

To be effective, a public officer’s resignation or an officer-elect’s declination must be in writing and signed by the officer or officer-elect and delivered to the appropriate authority for acting on the resignation or declination. A resignation must be accepted by that authority. (emphasis added)

This sub-section — with the emphasized language — was added in the 1985 recodification and revision of the Texas Election Code. Under the plain language of subsection (a), there are only three requirements for a resignation “to be effective” — that it be written, signed and delivered. It is undisputed that Justice Esquivel’s resignation met these requirements.

The Secretary of State asserts that there is a fourth requirement and that is, “acceptance” by the appropriate authority. Subsection (a), however, provides in a separate, second, sentence that “[a] resignation must be accepted” by the appropriate authority. Once a resignation is written, signed and delivered to the appropriate authority, that authority has no discretion in the matter and is compelled to accept it. This construction is consistent with the overall purpose of the statute. Title 12, when read as a whole, clearly was intended to protect the right of the voters of this state to choose their elective officers. See generally Seay v. Latham, 182 S.W.2d at 255 and Kilday v. Germany, 139 Tex. 380, 163 S.W.2d 184, 189 (1942).

Pursuant to Title 12 of the Texas Election Code, we hold that for the limited purpose of triggering the electoral process, a vacancy in Justice Esquivel’s office exists as a matter of law. We anticipate that the Secretary of State will execute his duties in accord with the Election Code and this opinion. Should he fail to do so, a mandamus will issue.

Because of the impending deadline for printing the ballot for the general election, a motion for rehearing will not be entertained. Tex.R.App.P. 190.³

MAUZY, J., concurs. PHILLIPS, C.J., dissents joined by CULVER, J. —

1 . Unless otherwise provided, the sections referred to in this opinion are part of the Texas Election Code.

2 . The procedures for filling a vacancy in a state or county office, other than a state legislator, are found in §§ 202.001-.007. See also § 203.001 et seq. (state legislature), and § 204.001 et seq. (United States Congress).

3 . The dissent's reliance on Sawyer v. City of San Antonio, 149 Tex. 408, 234 S.W.2d 398 (1950) is misplaced. Sawyer is distinguishable on its facts and is a pre-Election Code case. Sawyer was a police officer who sought to withdraw his resignation prior to it having been brought to the attention of or accepted by the mayor. The court concluded that the resignation had been successfully retracted before it became effective.

The dissenting opinion also poses and answers a question which is "hypothetical, ‘iffy and contingent" and would have the court violate well-established precedent by giving an advisory opinion. Firemen’s Ins. Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331, 333 (Tex.1968).