I dissent from the majority opinion granting mandamus relief. I would deny Miguel Estrada's petition for writ of mandamus on the ground that this Court no longer has the authority by mandamus to order the Mayor of Donna to hold a run-off election for an office that has already been assumed by the plurality winner of the original election.
The Texas Election Code allows the Texas Supreme Court or a Court of Appeals to issue a writ of mandamus "to compel the performance of any duty imposed by law in connection with the holding of an election." TEX. ELEC. CODE ANN. § 273.061 (Vernon 1986). Estrada, however, requests a writ of mandamus to compel the Mayor of Donna to call a runoff election for a council seat which has already been assumed by David Moreno. With the presumed winner already sworn into office and seated on the council, the election process about which Estrada complains is now over, and therefore beyond the power of this Court to correct by a section 273.061 election code mandamus. Any effective remedy must now entail the ousting of Moreno from office.
Mandamus, however, will not lie to remove an elected public official from office. In Villarreal v. Bustamante,480 S.W.2d 231, 232 (Tex.Civ.App.-San Antonio 1972, orig. proceeding), the court denied a petition for a writ of mandamus to force the chairman of a Zapata county political party executive committee to certify the relator as a candidate for a county precinct commissioner in a party primary election. The relator alleged the ineligibility of the incumbent to continue holding office because he no longer lived within the precinct boundaries due to the drastically redefined precinct lines. By requesting *Page 169 that his name be placed on the primary ballot, the relator called into question the incumbent's right to hold office, since the latter did not come up for re-election for two more years. The San Antonio Court of Appeals determined that mandamus is not available to challenge eligibility, right to hold office, or the validity of the underlying election.Villarreal, 480 S.W.2d at 232. Other cases suggest that an attack on the election, authority, and right to hold office of a de facto public official must be made either through a statutory election contest or a quo warranto proceeding. Pyote Independent School District v.Estes, 390 S.W.2d 3, 5 (Tex.Civ.App.-El Paso 1965, writ ref'd n.r.e.); and Toyah Independent School Districtv. Pecos-Barstow Consolidated Independent School District,497 S.W.2d 455 (Civ.App.— El Paso 1973, writ ref'd n.r.e.),cert. denied, 415 U.S. 991, 94 S.Ct. 1590,39 L.Ed.2d 887 (1974). Accordingly, in the present case, mandamus is not the appropriate means to remove Moreno from office.
Once Moreno was certified as the winner and sworn into office, the election process was over and it was no longer within the mayor's power to ignore this fact by calling a runoff election. Nor is it presently within this Court's authority to issue an election code mandamus ordering the mayor to take an action that he no longer may take.
I would deny the petition for writ of mandamus as having been improvidently granted.