in Re Glory Hopkins ( 2006 )

Petition for Writ of Mandamus Denied and Plurality Opinion filed January 18, 2006

Petition for Writ of Mandamus Denied and Plurality Opinion filed January 18, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00035-CV

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IN RE GLORY HOPKINS, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

P L U R A L I T Y   O P I N I O N

On January 6, 2006, relator, Glory Hopkins, filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2005); Tex. Elec. Code Ann. '' 161.009, 273.061 (Vernon 2003); see also Tex. R. App. P. 52.  We denied relief in an opinion filed January 10, 2006.  On January 13, 2006, relator filed a second petition.  Relator seeks a writ of mandamus directing Eric Thode, County Chairman of the Republican Party of Fort Bend County, to accept her application and certify her for placement on the Republican party general primary ballot as a candidate for District Clerk of Fort Bend County.  Thode rejected relator=s application because it was not received by January 2, 2006, at 6:00 p.m. See Tex. Elec. Code Ann. ' 172.023 (Vernon 2003).

Relator seeks equitable relief from the statutory deadline to file her application for a place on the general primary election ballot.  See Tex. Elec. Code Ann. ' 172.023(a) (Vernon 2003). Relator asserts Thode violated a statutory duty to provide candidates with a correct address to file their applications by mail.  Relator cites section 172.021(c) of the Election Code for the proposition that because candidates are allowed to file by mail, a statutory duty arose to provide the correct address to candidates for filing their applications by mail.  See Tex. Elec. Code Ann. ' 172.021(c) (Vernon Supp. 2005).

As relevant to this case, courts may fashion an equitable remedy, including extension of a statutory deadline, to correct an official=s violation of a statutory duty.  See In re Gamble, 71 S.W.3d 313, 318 (Tex. 2002).  When exercising this jurisdiction, a court must balance the competing equities.  Id. at 317.  Extending the statutory deadline is an extraordinary departure from the careful planning of the legislature and not to be invoked lightly.  Id. at 318.^[1]  In this case, to whatever extent the law imposed a duty on Thode to provide a correct address for filing applications by mail, and to whatever extent the three e-mails he sent containing an incorrect zip code in the address for Precinct Chair applications violated this duty, he corrected this error by providing correct information in several other and subsequent e-mails, including all of those directed to candidates for all elected positions besides Precinct Chair. Conversely, by choosing to send her application and petitions by mail, but not having the package postmarked until December 27, Hopkins assumed a risk that delivery of the materials, even if correctly addressed, could be delayed over the holiday weekend, and that she would not be notified in time to retrieve and timely file those materials by January 2.  Under these circumstances, relator has not established that the failure to timely file her application reasonably resulted from the violation of a statutory duty such that the competing equities warrant extending the statutory deadline.

Accordingly, we deny relator=s petition for writ of mandamus.

/s/        Richard H. Edelman

Justice

Petition denied and Plurality Opinion filed January 18, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman. (Guzman, J. concurring, opinion to follow.)  (Fowler, J. dissenting, opinion to follow.)

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^[1]Although Gamble was an injunction proceeding, whereas this is a mandamus, such equitable relief has been afforded in mandamus cases.  See Bell, 91 S.W.3d 784, 788 (Tex. 2002) (orig. proceeding); Davis, 930 S.W.2d 581, 584 (Tex. 1996) (orig. proceeding).