in Re Bradley E. Parsons ( 2002 )

In re Bradley E. Parsons

  IN THE

TENTH COURT OF APPEALS

No. 10-02-214-CV

IN RE BRADLEY E. PARSONS

Original Proceeding

LEAD 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 Parsons failed to file a sworn application for his name to be placed on the ballot. A sworn application has not been filed even to this date. I have found no conduct of an election official that I can say was a violation of a ministerial duty owed to Parsons or the voters. Accordingly, the petition for writ of mandamus is denied.

      My sympathies are extended to Mr. Parsons and all those people that worked so hard to complete the petitions necessary for him to run as an independent candidate. I can only offer them the assurance of knowing that if it had been otherwise, if Parsons 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 Parsons 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.

                                                                         TOM GRAY

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

      (Chief Justice Davis concurring in result only)

      (Justice Vance dissenting)

Writ denied

Opinion delivered and filed August 7, 2002

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[CV06]