Sparks v. Busby

PER CURIAM.

This appeal is to stay the enforcement of a temporary injunction and writ of mandamus issued by the trial court against appellant, Eddy Rabe, and party in interest Elmer Sparks. On July 7, 1982, having been presented with a petition containing 56 signatures, of which 50 valid signatures were required, Judge Loyd McKinney, County Judge of Rains County, directed County Clerk Eddy Rabe to place the name of Elmer Sparks on the General Election Ballot as an independent candidate for county judge pursuant to Article 13.52, Texas Election Code.1

Thereafter A. L. Busby, in an original proceeding, filed a motion for leave to file a petition for writ of mandamus in this court. This court, in a per curiam opinion dated August 12,1982, overruled Relator’s motion for leave to file a petition for writ of mandamus due to the existence of disputed fact issues in the case.

Thereafter on August 17,1982, A. L. Busby filed an original petition for injunction and writ of mandamus against Eddy Rabe and party in interest Elmer Sparks in the 8th Judicial District Court of Rains County, Texas. On August 26, 1982, after a bench trial the trial court overruled a plea to the jurisdiction urged by Eddy Rabe and Elmer Sparks and enjoined Eddy Rabe, the County Clerk, from placing the name of Elmer Sparks on the Rains County General Election Ballot as an independent candidate for county judge. From this order Eddy Rabe and Elmer Sparks have perfected this appeal. At the request of both parties, we have adopted their trial briefs as their briefs on appeal.

The critical issue in this appeal is whether the trial court had jurisdiction to grant relief in this matter. We find that the district court had jurisdiction to intervene, that the statutory requirements for filing the candidate’s petition were not met, and therefore Elmer Sparks is not eligible to have his name appear on the November 2nd General Election Ballot. We affirm the district court’s judgment.

JURISDICTION

Appellant contends that the certification of his petition was within the “election process” and as such is immune from judicial review. Proceedings which litigate the validity of elections are to be filed within thirty days after the election in accordance with Art. 9.03 of the Election Code. Appellant contends that the instant challenge to the candidate’s eligibility amounts to an election contest.

Appellant asserts the case of City of Austin v. Thompson, 147 Tex. 639, 219 S.W.2d 57 (1949), is on point, contending all acts which are a part of the election process *715are immune from judicial review and exempt from judicial interference. In that case the petitioner sought to enjoin an entire election from occurring. The supreme court affirmed the trial court on the basis that the holding of an election is a political function, and courts have no power to inquire into the validity of an election until it is completed. City of Austin, supra 219 S.W.2d at 60. However, in the case at bar the issue is not the validity of the election, but the eligibility of an independent candidate seeking a place on the ballot.

Pursuant to Article 13.50, an independent candidate may be placed on the ballot after the presentation of a valid, timely application to the county judge. Under appellant’s contention this would allow the county judge to be the final arbiter, allowing no review until after the election. Candidates running in a party primary are subject to a dual screening by party officials and the party electorate. This process provides an opportunity for appropriate review of the qualifications and eligibility of candidates which is not available in the ease of an independent candidate.

Appellant cites Kolsti v. Guest, 565 S.W.2d 556 (Tex.Civ.App.—Austin 1978, no writ), as a case in point. In Kolsti, the contest concerned a request that a certain referendum issue appear on the primary ballot. The appellate court affirmed dismissal for want of jurisdiction, holding that the contested referendum issue was incident to the election and beyond the power of the court. Kolsti, supra at 557. The Kolsti case further points out that, “since 1919, the law has been that no ineligible candidate may have his name placed upon the ballot at the primary, general, or special election.” Kolsti, supra at 557. That is the very issue in this case: the eligibility of the candidate, not the validity of an election.

Appellant also relies on Ellis v. Vanderslice, 486 S.W.2d 155 (Tex.Civ.App.—Dallas 1972, no writ), which allows judicial action to facilitate but not interfere with the election process. The election process embraces all public elections. Although the official announcement of a candidate is within this process, Id. at 160, the eligibility of one seeking to be a candidate is subject to question and review. Absent such question and review the election process is subject to abuse. The actual election process is a right of the people not to be interfered with, but the right to candidacy is a privilege which is subject to strict statutory requirements. We are not willing to find that the county judge’s certification of an independent candidate is within the election process.

Finally, appellant cites Moore v. Edna Hospital District, 449 S.W.2d 508, (Tex.Civ.App.—Corpus Christi 1970 writ ref’d n.r.e.); Moore v. City of Corpus Christi, 542 S.W.2d 720, (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.); and Mitchell v. Carroll Indep. School Dist., 435 S.W.2d 280, (Tex.Civ.App.—Fort Worth 1968, dis’d), for authority that the court has limited powers to entertain suits contesting elections. These cases all refer to the thirty-day notice of contest that is required after the day of the election in conformity with Article 9.03 of the Election Code. The issue before this court is of a different nature.

Article 14.14 of the Texas Election Code provides in pertinent part:

The district courts of this state shall have jurisdiction to issue injunctions to enforce the provisions of this code upon application by any citizen of this state.

The courts have strictly construed the eligibility requirements as being mandatory as set forth in the Texas Election Code. In the case of Parchman v. Rodriquez, 458 S.W.2d 239 (Tex.Civ.App—Corpus Christi 1970, no writ), after an evidentiary hearing the district court enjoined the county clerk from placing the name of an independent candidate on the ballot because the candidate had failed to meet the eligibility requirements of Article 13.12a(5) of the Texas Election Code.

Where Article 14.14 grants jurisdiction to district courts to issue writs of injunction and mandamus, the supreme court and courts of appeal have exercised this jurisdiction to grant writs of injunction and mandamus when no disputed fact question *716exists. Pierce v. Peters, 599 S.W.2d 849 (Tex.Civ.App.—San Antonio 1980, no writ); Shields v. Upham, 597 S.W.2d 502 (Tex.Civ. App.—San Antonio 1980, no writ); Tyler v. Cook, 573 S.W.2d 567 (Tex.Civ.App.—San Antonio), rev’d on other grounds 576 S.W.2d 769 (Tex.1978); Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.—Dallas 1976, no writ). Where a factual dispute exists the district court is the appropriate forum. Either a temporary injunction or a writ of mandamus is an acceptable remedy for removal of a candidate from the ballot when he has failed to strictly comply with the eligibility requirements. In the instant case the issue is the eligibility of Elmer Sparks as a candidate, not the validity of holding the election. The cases of Pierce, Shields, Tyler and Geiger demonstrate that eligibility can and should be questioned pri- or to the actual election.

. All citations herein are to Texas Election Code Ann., unless otherwise noted.