I am compelled to dissent. The court's decision in this case is inconsistent with our recent decision in The StateDemocratic Executive Committee, Bob Slagle, Chairman, and RonCarr v. Jack Rains, Secretary of State, 756 S.W.2d 306 (Tex. 1988).1 In the instant case, the majority's extremely technical construction of the Election Code results in an order deleting Patrick A. Pirtle's name from the general election ballots in the forty-five counties of the 7th Court of Appeals. This result is entirely inconsistent with this court's prior holdings.
Only last month, in the above cited "Ron Carr " case, a majority of this court liberally construed the provisions of the Election Code in conditionally granting a writ of mandamus compelling the Secretary of State to accept the certification of the Democratic Executive Committee's candidate, Ron Carr. Purporting to rely on Seay v.Latham, 143 Tex. 1, 182 S.W.2d 251 (1944), the majority advocated an interpretation of the Election Code "to protect the right of the voters of this state to choose their elective officers." See The State Democratic Executive Committee,Bob Slagle, Chairman and Ron Carr v. Jack Rains, Secretary ofState, at 646. On September 26, 1988, one month later, the majority, again relying on Seay v. Latham, reaches a completely different result and denies the people in forty-five counties of Texas their constitutional right to choose their elective officers.
Basic to this case is an interpretation of the Election Code, Section 145.036(d), which calls for a meeting of the State Republican Executive Committee to certify a candidate. Even though the Democrats would not attend or participate in a meeting of the State Republican Executive Committee, they were offended because the Republicans conducted their meeting by telephone. How the Democrats were harmed by the polling of committee members by telephone remains a mystery.
Section 163.002 of the Election Code provides that a political party may adopt bylaws. Pursuant to Section 163.002 the Republicans formally adopted the following:
*Page 230The Executive Committee shall meet upon call of the Chairman, at such times as required by the Texas Election Code and as provided by these bylaws in (succeeding) sections of this Article, and by the rules of The Republican Party of Texas. Votes required by statutory contingencies may be ratified by a telephone poll representing approval by a majority of respondents, said respondents being no less than 3/4 of the executive committee membership. All meetings of the Executive Committee other than those conducted by telephone, shall be open to credentialed media representatives and to interested Party members, except that the Executive Committee may declare an executive (closed) session for the purpose of considering confidential matters. (Emphasis added)
State Republican State Executive Committee Bylaw (Article V, Section I). Operating under this bylaw, the Executive Committee members were contacted by telephone. An overwhelming majority of those contacted — not surprisingly — approved the governor's nominee, Patrick A. Pirtle. He assumed office and has served on the Court of Appeals since September 14, 1988.
The majority's holding conflicts with past decisions concerning the availability of mandamus. See generallySkelton v. Yates, 131 Tex. 620, 119 S.W.2d 91 (1938) (holding that upon commencement of the election process, mandamus will not lie to prevent the inclusion of a candidate on the official ballot because by that time the case has become moot). In the case at bar, the election process has begun. Pirtle, the Republican candidate's name, has been printed on all the ballots in forty-five Panhandle counties anticipating the November 8, 1988, general election. As of September 24, 1988, absentee ballots may be mailed to voters. This court ordered Justice Pirtle's name stricken from the general election ballot on September 26, 1988. Interfering with the election process in this manner after the process has begun is a radical and imprudent departure from past precedent.
By a meritless selection process, the majority has effectively chosen a justice for the 7th Court of Appeals, thereby usurping the constitutional right of the voters in that vast region to choose between candidates. The majority's opinion places a premium on the form of the State Republican Executive Committee's meeting while failing to consider the substance of denying voters' rights. At no point in the briefs, pleadings or arguments have the qualifications of Justice Pirtle been challenged. The majority claims to have eliminated Justice Pirtle from the election process merely because the State Republican Executive Committee members were contacted by telephone, and did not convene a "meeting" under this court's interpretation of the Election Code. If error exists in the Republican party's failure to convene its Executive Committee, the error was one of form, not substance. This failure to convene for the purpose of approving the governor's nominee — if error it be — is insignificant compared to the majority's denial of the voter's right to choose a justice for the 7th Court of Appeals.
As it now stands, only the name of the Democratic Party's candidate will appear on the general election ballot. I disagree with this result because the people's right to elect those persons who adjudicate their disputes is only meaningful if the people are given a choice between two qualified candidates. By granting appellant's request, the majority's decision denies the voters of the 7th Judicial District any choice. This is wrong, I believe this court should avoid intervening in the election process, and I am compelled to dissent. The motion for leave to file petition for writ of mandamus should have been denied.
COOK, J., joins in this dissenting opinion.
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