Wallace v. Howell

707 S.W.2d 876, 29 Tex. Sup. Ct. J. 267, 1986 Tex. LEXIS 948

• Court: Texas Supreme Court
• Decided: March 12, 1986
• Docket: C-5034, C-5057
• Status: Published

Opinions

OPINION

HILL, Chief Justice.

On January 23,1986, Charles Ben Howell filed as a candidate for the office of “Associate Justice, Supreme Court, Place One-Sears McGee” in the Republican primary. On the last day to file as a candidate for office, Howell attempted to switch his candidacy from Place One to Place Three, Texas Supreme Court. To accomplish this, he contemporaneously filed with the Republican Party Chairman an application for . a place on the ballot for “Associate Justice, [sic] Supreme Court, Place Three-James P. Jim Wallace” along with a letter containing the following:

1.

On January 23, 1986, I presented to you my application for a place on the Republican Party General Primary Ballot stating “Office Sought: Associate Justice, Supreme Court, Place One-Sears McGee.”

2.

Contemporaneous with the delivery hereof, I present to you my application for a place on the Republican Party General Primary Ballot stating “Office Sought: Associate Justice, Supreme Court, Place Three-James P. Jim Wallace.”

3.

Expressly conditioned upon the acceptance and approval of the contemporaneous application mentioned in ¶ 2 hereof and only to become effective if and when I have qualified to have my name appear on the primary ballot as a candidate for said place three, I hereby conditionally withdraw as a candidate for the office mentioned in 1T1 hereof and upon the conditions aforesaid, request conditionally that my name be omitted from the ballot as a candidate for said place one.

The Republican Chairman accepted the conditional withdrawal and allowed Howell to become a candidate for Place Three.

We are called upon in this original mandamus proceeding to determine whether these filings legally effectuated Howell’s purposes. We hold that such filings did not and order Republican Party Chairman, George W. Strake to place Charles Ben Howell’s name on the ballot as a candidate for Justice of the Supreme Court-Place One.

The recently codified Texas Election Code specifically addresses the issue before us as follows:

§ 141.033. Filing Applications for More than One Office Prohibited

(a) A candidate may not file applications for a place on the ballot for two or more offices that:

(1) are not permitted by law to be held by the same person; and

(2) are to be voted on at one or more elections held the same day.

(b) If a person files more than one application for a place on a ballot in violation of this section, each application filed subsequent to the first one filed is invalid.

(c) This section does not apply to candidacy for the office of president or vice-president of the United States and another office.

Tex.Elec.Code Ann. § 141.033 (Vernon Pamph.1986). The legislative history behind Section 141.033 sets forth its intended effect:

The revised law expands the prohibition against candidacy for two or more offices on the ballot that may not be held by the same person to include any such offices to be voted on at one or more elections held on the same day. The section provides that only the first of such applications for a place on the ballot is effective.

Tex.Leg.Council, Report of the Election Code Study Committee 100 (1985).

Relator Wallace contends that Howell’s name must be stricken from the ballot for Place Three because he filed an application for a place on the ballot while his previous application was still on file, thereby violating Section 141.033. We agree. The express language of Howell’s withdrawal provides that it was to become effective only after he had been accepted as a candidate for the second race, that is, Place Three. Thus, when Howell filed his application for Place Three he then had filed applications for a place on the ballot for two offices not permitted to be held by the same person and, pursuant to Section 141.033(b), the second application is invalid.

This result is mandated by the plain language of Section 141.033 and this court’s previous decisions that statutory requirements concerning candidacy for political office are mandatory and are to be strictly enforced. E.g., Brown v. Walker, 377 S.W.2d 630 (Tex.1964); Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944). This court’s recent decision in Painter v. Shaner, 667 S.W.2d 123 (Tex.1984), reaffirmed the rule that statutory mandates to be met by candidates should be strictly construed to ensure compliance. See also: Leach v. Fischer, 669 S.W.2d 844 (Tex.App.—Forth Worth 1984) (orig. proceeding); Sparks v. Busby, 639 S.W.2d 713 (Tex.App.—Tyler 1982, writ dism’d); Shields v. Upham, 597 S.W.2d 502 (Tex.Civ.App.—El Paso 1980) (orig. proceeding); Gray v. Vance, 567 S.W.2d 16 (Tex.Civ.App.—Fort Worth 1978) (orig. proceeding); Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.—Dallas 1976) (orig. proceeding); Newsom v. Adams, 451 S.W.2d 948 (Tex.Civ.App.— Beaumont 1970, no writ); Bryant v. Dallas County Democratic Executive Committee, 451 S.W.2d 803 (Tex.Civ.App.—Dallas 1970) (orig. proceeding). Because Howell filed more than one application for a place on the ballot in violation of Section 141.033 of the Texas Election Code, we hold that his application for Place Three, being subsequent to the first one filed, is invalid. Tex.Elec.Code Ann. § 141.033(b) (Vernon Pamph.1986).

In response to Wallace’s petition for writ of mandamus, Howell seeks a writ of mandamus removing Wallace from the ballot for Place Three. Specifically, Howell contends (1) that Wallace has improperly denominated the office for which he wishes to run as “Justice, Supreme Court of Texas;” (2) that Wallace’s statement in his oath that he is running for the office of “Supreme Court” invalidates the application because the “Supreme Court” is a tribunal, not an office; (3) that Wallace’s payment of the filing fee by check amounted to conditional payment in violation of the Election Code; and (4) that Wallace’s check was made payable to the “Texas Democratic Party,” an entity, whereas the Election Code requires that the application and fee be filed with the party chairman. We find no merit in any of Howell’s contentions. Wallace’s application and filing fee payment conform to the Election Code’s mandatory requirements. See Tex.Elec.Code Ann. §§ 141.-031, 172.021(b), 172.022(a)(1) (Vernon Pamph.1986). The application and filing fee were indisputably delivered to Democratic Party Chairman Slagle as required by Section 172.022(a)(1) of the Election Code. Therefore, Howell’s petition for writ of mandamus is denied.

We grant the writ of mandamus requested by Wallace and order that Republican Party Chairman Strake remove Howell’s name from the ballot for Place Three and place Charles Ben Howell’s name on the ballot as a candidate for Justice, Supreme Court, Place One.

GONZALEZ, J., concurring and dissenting. McGEE and WALLACE, JJ., not sitting.