in Re Larry Elwell ( 2002 )

In re Larry Elwell

  IN THE

TENTH COURT OF APPEALS

No. 10-02-213-CV

IN RE LARRY ELWELL

Original Proceeding

DISSENTING OPINION

      Texas courts have used a simple distinction to determine who should suffer the consequences of failing to follow the election code. Cf. Painter v. Shaner, 667 S.W.2d 123 (Tex. 1984); In re Gibson, 960 S.W.2d 418 (Tex. App.—Waco 1998, orig. proceeding). If the failure to comply with the election code is something within the candidate’s control, the candidate is kept off the ballot. Gibson, 960 S.W.2d at 421. Alternatively, the candidate does not suffer the consequences caused by an election official’s failure to perform a ministerial duty. Painter, 667 S.W.2d at 125; see also Davis v. Taylor, 930 S.W.2d 581 (Tex. 1996). This distinction is workable and serves the greater public good of certainty and predictability.

      It is undisputed that Elwell failed to timely file an application for his name to be placed on the ballot. I have not found any conduct of an election official that I can say was a violation of a ministerial duty owed to Elwell or the voters. Accordingly, I would deny the petition for writ of mandamus.

      My sympathies go out to the election officials across this great State of Texas, in particular those in this district. You no longer can safely reject what is obviously a late or deficient filing. We cannot give you much guidance about what excuses you can accept for a late or incomplete application; we will only decide those issues as they present themselves. But because you no longer have the assurance of being able to rely on the candidate’s failure to comply with the election code as a basis to reject an application, you will undoubtedly generate a lot of hard feelings and litigation by those you keep off the ballot, by those you let on the ballot, and by those who will have opponents because you put someone on the ballot that may have filed a late or defective application.

      If we were denying this petition, as I contend we should, my sympathies would be extended to Mr. Elwell and all those people that worked so hard to complete the petitions necessary for him to run as an independent candidate. I could only offer them the assurance of knowing that if it had been otherwise, if Elwell had done everything necessary to get on the ballot but was prevented by an election official, I would, with equal fervor, enforce the letter of the law against that election official. For Elwell and his supporters, with the benefit of hind-sight, it would have been preferable if the documents had been filed well in advance of the deadline so that this type problem, one that arose at the last minute, could have been avoided.

      Because the majority grants relief even though Elwell’s failure to comply with the election code was within his control, I respectfully dissent.

                                                                         TOM GRAY

                                                                         Justice

Dissenting opinion issued and filed August 7, 2002

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0;                                            Chief Justice

Concurring opinion delivered and filed May 12, 2004

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