Phil BIRD, Dеmocratic Nominee for State Representative, District 108, Dallas County, Texas, Relator, v. Bruce ROTHSTEIN, Chairman, District 108 Executive Nominating Committee of the Democratic Party; and Antonio O. Garza, Jr., Secretary of State for the State of Texas, Resрondents.
No. 96-0910.
Supreme Court of Texas.
Oct. 2, 1996.
930 S.W.2d 586
(a) [T]he state chairman shall certify in writing for placement on the general primary election ballot the name of each candidate who files with the chairman an application that complies with Section 172.021(b).
Id. (emphasis added). Section 145.037 does not contain even remotely similar language to section 172.028. On its face, LaRouche is inapposite.
We have in the past limited mandamus in election contests where there was at least attempted compliance with the statutory requirements fоr placement on the ballot. In LaRouche, for example, Lyndon LaRouche timely filed his application for the primary election as a presidential candidate with the State Democratic Party Chairman. 822 S.W.2d at 633. And in Painter v. Shaner, 667 S.W.2d 123, 124 (Tex.1984), a candidate for sheriff attemptеd to timely file his application with the county party chair but could not do so because the party‘s offices were closed on the date of the statutory deadline. See also Walles v. McDonald, 889 S.W.2d 236, 237 (Tex.1994) (mandamus to place independent candidate on general election ballot granted where candidate attempted to timely file application at county court house by January 3, 1994, but court house was closed for a local holiday); Slagle v. Hannah, 837 S.W.2d 100, 102-03 (Tex.1992) (mandamus granted where candidate had no reasonable opportunity to comply with deadline). We have never granted mandamus where there was no attempt to comply with the statutory deadlines for placing a candidate on the ballot.
The Court‘s reading of section 145.037 rewrites section 145.037 to eliminate any requirement of timely certification. As written, section 145.037 says, to paraphrase, “if you want your party‘s candidate on the ballot, you must certify his nomination 60 days before the election.”
I would deny the petition for writ of mandamus.
W. Michael Bonesio, Dallas, for Relator.
Bob Driegert, Charles W. Sartain, Dallas, Carolyn Galloway, University Park, Antonio O. Garza, Jr., Dan Morales, Christine Guerra Edwards, Thomas W. Pauken, Austin, Bruce Rothstein, Dallas, for Respondents.
SPECTOR, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, GONZALEZ, HECHT, ENOCH, BAKER and ABBOTT, Justices, join.
In this original proceeding, Phil Bird seeks mandamus relief to require that his name be placed on the ballot as the Democrаtic nominee for state representative in House District 108. The issue is whether Bird is entitled to relief in light of our recent opinion in Davis v. Taylor, 930 S.W.2d 581 (Tex.1996). We conditionally grant in part the requested writ of mandamus.
The Honorable John Carona, the incumbent state representative for District 108, was the Republican nominee for the position when he withdrew to fill a senate seat. It is undisputed that, upon Carona‘s withdrawal, the Democratic party was entitled to nominate a candidate for the seat. See
On September 3rd, the District 108 Democratic Executive Committee met and nominated Phil Bird for the House seat. The Committee‘s chair, Bruce Rothstein, filled out and acknowledged a form certifying Bird‘s candidacy. Rothstein did not, however, deliver the form to the Secretary оf State, as section 145.037 of the code requires. See Davis, 930 S.W.2d at 582-583. Instead, he gave the form to the county party chair, Lisa Payne.
On September 30th, Bird filed a motion for leave to file a petition for writ of mandamus in this Court. Bird asks us to order Rothstein and, additionally or alternаtively, the Secretary of State to certify Bird‘s candidacy. In response to Bird‘s request for temporary emergency relief, we issued an order directing the Secretary of State to notify election officials in District 108 to stop printing and mailing ballots pending further order of this Court. 40 TEX. SUP.CT. J. 3 (September 30, 1996).
Bird argues, first, that compelling circumstances excuse his failure to first seek relief in the court of appeals. See
Davis is on all fours with this case; in fact, the delivery of a proper certification in this case before the Secretary of Stаte‘s statutory
The Secretary of State argues that Bird is not entitled to relief in this case because he delayed too long in seeking judicial recourse. We have in the past, however, ordered the Secretary of State to certify a candidate entitled to a place on the ballot within thirty-one days of an election. Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753, 763 (1932). Here, thirty-four days remain before the election. In another case, we granted mandamus relief even though a large number of ballots in that statewide race had already been printed. LaRouche v. Hannah, 822 S.W.2d 632, 634 (Tex.1992). We noted that the candidate was entitled to a remedy “[a]t least until absentee balloting has actually begun....” Id.; see also
Moreover, the Secretary of State‘s refusal to follow Davis accounts for part of the delay in the election рrocess. Our usual practice when a party has been shown to be entitled to mandamus relief is not to issue the writ until the respondent has failed to comply with our opinion. We followed this practice in Davis, and we do so again today, although we аre concerned about the Secretary of State‘s refusal to act until ordered to do so. Accordingly, we conditionally grant the petition for writ of mandamus and order the Secretary of State to certify Bird‘s candidacy. A writ of mandamus will issue оnly in the event he fails to do so.
OWEN, Justice, joined by CORNYN, Justice, filed a dissenting opinion.
OWEN, Justice, filed a dissenting opinion in which CORNYN, Justice, joins.
I respectfully dissent. I would conditionally grant mandamus relief in this case, however the order should be directed to Bruce Rothstein, thе district committee director, not the Secretary of State. The Secretary of State is not empowered to extend the deadlines set out in the Election Code. Where a party official has failed to comply with his or her statutory duties, thе Election Code gives the authority to courts of appeals and to this Court to issue writs of mandamus that extend deadlines, but that authority does not reside with the Secretary of State.
The Court expresses its dismay that the Secretary of State did not simply rеad our recent decision in Davis v. Taylor, 930 S.W.2d 581 (Tex.1996), and take it on himself to accept the filing of a certificate under section 145.037(e) of the Election Code, even though that filing was not received by the statutory deadline. 930 S.W.2d at 587-588. In Davis, we held that the candidate was
There is no difference between this case and the Davis case. Until there has been a determination that the party official failed to comply with the statutes, and that all the other requirements for the issuance of extraordinary relief are present, mandamus relief cannot be issued by a court, much less the Secretary of Statе. It was through the extraordinary measure of mandamus that the deadlines in the Election Code were extended in Davis. The Legislature has seen fit to expressly grant mandamus authority to the courts of appeals and to this Court to compel electiоn officials to perform their duties,
The Court seems to draw a distinction between this case and Davis because here, the committee chair did file a certificate in the proper form before the Secretary‘s deadline for certifying candidates, which was September 11, fifty-five days before the election.
In the wake of our decision in Davis and under prior decisions оf this Court, it is clear that when circumstances such as the ones present in this case arise, candidates are entitled to mandamus relief against party officials who fail to carry out their statutory duties. The Davis decision does not translate into a dirеctive to or authority for the Secretary of State to accept late filings. The Secretary of State is simply not empowered to do so.
For these reasons, I cannot join the Court‘s opinion.