Stockwell v. Parr ( 1958 )

POPE, Justice

(dissenting).

I concur in that part of the majority opinion which holds that for all practical' purposes the term of the appointments of appellants will expire on December 31, 1958. The Supreme Court in Tobin v. Garcia, Tex., 316 S.W.2d 396, held that the suit by Parr and Garcia against J. P. Stock-well and Rafael Garcia was one for the title to the offices of County Clerk and Sheriff, respectively. The suit is, therefore, not an appeal from an order of the Commissioners’ Court under the supervisory powers of the District Court, but is a direct suit brought in the District Court for the title to the offices.

The Commissioners’ Court at no time ever canvassed the votes cast for County Clerk and Sheriff in the November, 1956, election, until it did so in October of 1958. The granting of the injunction means that a District Court can by injunction interfere' in a purely political matter, a thing which has not heretofore been countenanced. 15-B Tex.Jur., Elections, § 142. In my opinion the filing of what the Supreme Court has finally construed as an original suit filed in the District Court for the trial of title to office, does not oust the jurisdiction of the Commissioners’ Court of its political powers to do what it is required' to do by Section 8.34 of the Election Code,, V.A.T.S. An appeal by resort to the supervisory powers of the District might do so, but this, says the Supreme Court, is not such a proceeding.

The unfortunate result of the opinion of the majority is that a Commissioners’’ Court may refuse to comply with Article 8.34 of the Election Code; then the one who received the majority of the votes is forced to file a suit for title to the office. From the opinion of the majority, once a suit, for title to office is filed the Commissioners’ Court loses all power to comply with the law. The result is that a candidate may win at the polls, as both of the appellees did, but the Commissioners’ Court by refusing to act, can force the winner to file a suit for title to the office. When that suit is filed, according to the majority, the Commissioners’ Court is ousted of its power to act, and the winner at the polls winds up with the burden of proof.

I would affirm the judgment of the trial court.