I dissent. I would not grant the mandamus.
In my opinion the mandamus should not be granted for the following reasons:
(1) Relator has a plain, adequate and effective remedy at law and is presently pursuing such remedy. An election contest was filed by relator in the district court on or about June 27, 1980, and is set for trial on the merits on Monday, July 28, 1980, approximately three days from now. In the election contest relator requested that the district court conduct a recount of the ballots in the race in question. Under Article 13.30(10) of the Texas Election Code, the district court has ample power to provide the relief sought here and can do it much more expeditiously than this court can. *Page 411 Any recount ordered by this court under the writ of mandamus would be slow and cumbersome since there are seven counties involved and there are estimates that the recount would take from two to three weeks.
(2) After the filing of the election contest by the relator in the district court, the district court, and not the State Democratic Executive Committee, had jurisdiction to grant the relief sought by relator. See Howard v. Daniel, 76 S.W.2d 141 (Tex.Civ.App.-Fort Worth 1934, no writ), where the court held that a petition for a writ of mandamus to enjoin the county clerk from placing the name of a nominee on the official ballot for general election was abandoned when petitioner sought trial on his election contest.
(3) The relief sought by relator here in his petition for writ of mandamus would not be binding in the election contest. See Tex.Elec Code Ann. art. 9.38a subsection 12 (Vernon Supp. 1980).
(4) A person seeking a writ of mandamus should exercise due diligence in the pursuit thereof. Here relator filed his application to have a recount with respondents on June 19, 1980. He thereafter brought an election contest but did not see fit to file his application for writ of mandamus with this court until July 24, 1980, more than a month later and less than a week before the date set for trial of the election contest. It has already been pointed out that the recount sought through the proceeding before us would take a considerable portion of time and could be handled much more quickly and effectively in the election contest. Moreover, a mandamus is an extraordinary remedy governed by equitable principles and should not be used for discovery procedure or as a fishing expedition to obtain possible evidence in the election contest, if this is being done. The interests of justice will not best be served by a proceeding which will result in undue delay.
Under the record this court should not grant the mandamus.