421 S.W.3d 913
Tex. App.2014Background
- This mandamus proceeding concerns the March 4, 2014 Republican primary ballot in Cherokee County.
- Relator Kelley Peacock is a candidate for Judge of the Cherokee County Court at Law and the current judge of that court.
- Peacock seeks a writ compelling Jerry Rix, Cherokee County Republican Party chair, to declare Janice Crosby McKennon Stone ineligible for the primary.
- Stone filed for a place on the ballot for the same office; Peacock also filed for a place on the ballot.
- Stone claimed two years and seven months of Cherokee County residence; Peacock provided records she argues prove Stone’s ineligibility.
- Rix chose not to decide the petition on residency grounds, Peacock filed this original proceeding and a motion for expedited consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to declare ineligible on public records | Peacock contends Rix violated §145.003 by not declaring Stone ineligible. | Rix had discretion and found records inconclusive for conclusive ineligibility. | Rix did not violate the duty; records do not conclusively show ineligibility. |
| Residence determination for candidacy | Stone’s Williamson County voting history shows she did not reside in Cherokee County for two years. | Voting history and homestead records are not dispositive; residence is a fact issue. | Residency raises a fact issue; not conclusively established by the records. |
| Conclusive evidence from public records | Public records supplied conclusively prove ineligibility. | No single factor or document conclusively establishes ineligibility. | Documents, alone or combined, do not conclusively establish Stone’s ineligibility. |
| Mootness and timing of challenge | Early voting by mail has begun, making challenge moot. | Deputy deadline to declare ineligibility remains; not moot. | Challenge not moot; chair’s duty remains until early voting by appearance begins. |
Key Cases Cited
- Mills v. Bartlett, 375 S.W.2d 940 (Tex.Civ.App.-Tyler 1964) (residence is an elastic concept; depends on circumstances and intent)
- In re Link, 45 S.W.3d 149 (Tex.App.-Tyler 2000) (need clear legal right to relief in mandamus)
- In re Jackson, 14 S.W.3d 843 (Tex.App.-Waco 2000) (mandamus not used to resolve disputed facts)
- In re Cullar, 320 S.W.3d 560 (Tex.App.-Dallas 2010) (public records must be presented to the authority as required by statute)
- In re Am. Optical Corp., 988 S.W.2d 711 (Tex. 1998) (mandamus considerations in absence of explicit relief)
- City of Houston v. Todd, 41 S.W.3d 289 (Tex.App.-Houston [1st Dist.] 2001) (judicial notice appropriate for notorious, well-known facts)
- McDuffee v. Miller, 327 S.W.3d 808 (Tex.App.-Beaumont 2010) (homestead designation and residence factors in flux)
- Cramer v. Graham, 264 S.W.2d 135 (Tex.Civ.App.-San Antonio 1954) (voting outside the county relevant to residence determination)