*1 OPINION EXECU- The TEXAS DEMOCRATIC GONZALEZ, Justice. COMMITTEE, Slagle, Bob TIVE proceeding, In the Texas this Relators, Carr, Chairman, and Ron Committee, along Democratic Executive nominee, seek to with its Chairman accept compel State to RAINS, Secretary of Jack of Ron Carr as the Democratic certification State, Respondent. unexpired term of candidate for the Justice No. C-7672. “Rudy” Esquivel of Rudolph the Fourth Appeals.. conditionally grant We Court Supreme the writ of mandamus. Aug. case The facts are not
dispute. Justice submitted 1,1989, resignation to be effective re was to the Governor. 21,1988, the Governor’s on June ceived secretary informed Justice appointments would not ac Esquivel that the Governor resignation until November 1988. cept the has refused Carr as on the certification of Ron to act Es- for Justice Democratic candidate quivel’s unexpired term in the November Ann. general election. Tex.Elec.Code (Vernon 1988); 202.002, see §§ Secretary of seq.1 The State duty he claims that has “vacancy” on the certification without act unless exists accepts resigna until the Governor brought this man then tion. The Relators Tex. Gov’t Code proceeding under damus 22.002(c) Ann. and Tex.Elec.Code Ann. § (Vernon They contend that, given compliance with the Code’s delivered requirements, resigna Therefore, trig purposes of tion. un gering Secretary of State’s Code, vacancy a matter exists as der the Ann. 201.- Tex.Elec.Code law. See Seay La 001(a) and 202.023. See tham, agree. pro- Code the Texas Election
Title 12 of in office. fill vacancies vides for elections Ann. 201.001-204.021 Tex.Elec.Code provided, the sections 1. Unless otherwise opinion part of the Texas to in ferred *2 whole, clearly was intended
(Vernon 1988).
in
a when read as a
keyA
factor whether
appoint-
of this
vacancy
protect
is filled
of the voters
nominated,
ment,
is
and in how a candidate
their elective officers. See
state to choose
vacancy
to occur.2
the time the
is deemed
Latham,
generally Seay v.
182 S.W.2d at
title, vacancy
purposes of this
a
occurs
For
Kilday Germany, 139 Tex.
255 and
v.
prescribed in
201.021-.023.
at the times
particular,
12 of the
Elec-
Pursuant to Title
Texas
a
If an officer submits
Code,
we hold that for the limited
immediately
or at
to be
whether
process,
purpose
triggering the electoral
date,
vacancy
a
occurs on the
a future
Esquivel’s office exists
a
in Justice
accepted by
resignation
date the
anticipate
that the
as a matter of law.
authority.
appropriate
will execute his duties
section, in
must be construed
opin-
accord with the Election Codeand this
201.001(a):
together with so,
to do
a
ion.
he fail
Should
effective,
public
a
officer’s
To be
will issue.
declination must
tion or an officer-elect’s
impending
Because of the
deadline for
writing
signed by
the officer or
election,
printing
the ballot
appro-
officer-elect and delivered
rehearing
a
for
will not be enter-
motion
resig-
acting
for
on the
priate
Tex.R.App.P.
tained.
or declination. A
nation
must be
MAUZY, J., concurs.
added)
(emphasis
lan-
emphasized
This sub-section—with the
PHILLIPS, C.J.,
joined by
dissents—
guage
added in the 1985 recodifica- CULVER, J.
—was
tion and revision of the Texas Election
MAUZY,
concurring.
plain language
Under the
of subsec-
opinion,
(a),
I concur with the court’s
are
three
there
emptiness
point
out the strained
for a
“to be effective”—that
write
written, signed
reasoning.
It is un-
of the fore
and delivered.
the dissent’s
One
disputed
Esquivel’s
decision-making
principles
that Justice
most
requirements.
rendering advisory
met these
avoid
is that courts will
Company
opinions. Firemen’s Insurance
of State asserts
Newark,
Burch,
Jersey
442 S.W.
New
v.
is,
requirement
there is
and that
a fourth
(Tex.1968). Yet,
exactly
2d 331
“acceptance” by
have this court do.
what the
would
dissent
(a), however, provides
sepa
in a
Subsection
competing
By raising
spectre
of two
rate, second,
sentence that “[a]
office,
poses
the dissent
claims to an
accepted” by
au
problem that does not
fact
thority.
Once
pro
to the court and then
present itself
au
and delivered to
around its own “what
ceeds to reason
thority,
speculation.
type
of reason
style of
the matter and is
it.
hyperbole
for editorial
ing may be suitable
consistent
construction is
idealogue,
judges are to decide
an
purpose
overall
of the statute. Title
by mayor.
accepted
procedures
filling vacancy
of or
2.
for
in a state
the attention
legislator,
county
been
other than a state
had
court concluded that
202.001-.007. See also
found
successfully
effective.
retracted before it became
(state legislature),
seq.
§ 203.001 et
poses
dissenting opinion
and an
(United
Congress).
seq.
States
"hypothetical,
‘iffy
question
swers
contingent"
vio
and would have the court
The dissent's reliance on
precedent by giving an ad
late well-established
(1950) is
erable In either ruling deprives court’s not of the avoid this *4 incumbent office holder of opportunity withdraw acceptance. before _„
Nevertheless, necessary it is not to re- solve correct construction of section Pamela Ruth McGoldrick 201.001(a) in order to conclude that manda- FIELDER, Appellant, against mus not issue Secretary of State. Even if the Governor must ac- Texas, Appellee. STATE cept resignation, as the court holds, give Secretary the law does not No. 283-85. any authority of State to act when the Criminal Appeals Court of Governor does Even under the court’s reading it is still the June action; who take the Secre- tary of State’s duties arise thereafter. accepting
The act of is not
passive; my opinion, requires it still “a
formal declaration something ‘or ... tanta- acceptance,
mount to an ap- such as the
pointment of a successor’”. 108 Tex. at (quoting
S.W.2d at 401 43 Am.Jur. Public (1942)).
Officers discovery to make an affirmative submitted, has been and to determine acceptance
when that is effective. Those beyond are simply scope statutory powers. his constitutional or generally, 161.008, 202.002,
TEX.ELEC.CODE §§ inescapable
The conclusion is
Governor is officer the state conceivably have violated a stat-
utory duty. Since will not lie
against Governor, this court has no ordering
authority to act. mandamus to against
lie jurisdiction by ordering
court exceeds its