State Democratic Executive Committee v. Honorable Jack Rains , 758 S.W.2d 227 ( 1988 )

MAUZY, Justice.

This election mandamus involves the statutory process for the selection and certification of replacement nominees for the ballot. Justice Richard N. Countiss, an unopposed Democratic candidate for the Seventh Court of Appeals, withdrew from the race. Relators, the State Democratic Executive Committee, its Chairman Bob Slagle, and its replacement nominee, Judge Bryan Poff, sought to compel the Secretary of State to amend his certification of candidates so as to omit the name of Justice Patrick A. Pirtle, the nominee the Republican Party was entitled to name upon Justice Countiss’ withdrawal. By selecting its nominee by a telephone poll without a meeting of its members, the State Republican Executive Committee violated the procedural requirements of § 145.036(d) of the Texas Election Code. We therefore granted the writ of mandamus on an expedited basis by order of September 26, 1988.

Having earlier resigned his office, Justice Countiss withdrew his candidacy for the general election on August 6, 1988. In accordance with section 145.036 of the Texas Election Code, the District Democratic Executive Committee, consisting of the county chairs in each county comprising the Seventh Court of Appeals District, met on August 20, 1988 and selected Bryan Poff as its replacement nominee. Poff’s name was duly certified to and accepted by the Secretary of State. On September 6, the District Republican Executive Committee met but, for lack of a quorum, failed to select a nominee. Without holding a meeting, the State Republican Executive Committee then conducted a telephone poll of its members. Based on the results of this poll, Fred Meyer, the Republican State Chairman, certified Justice Pirtle, the Governor’s interim appointee, as the Republican nominee. The Secretary of State accepted Justice Pirtle as the Republican nominee and certified him as a candidate for the ballot.

As authority for conducting its telephone poll, the State Republican Executive Committee apparently relied on its own bylaws which state in article 5, section 1 that “[v]otes required by statutory contingency may be ratified by a telephone poll representing approval by a majority of respondents, said respondents being no less than ¾ of the executive committee membership.” Although political parties are statutorily authorized to make party rules, all such rules must be consistent with state law. Tex.Elec.Code Ann. § 161.003 (Vernon 1986). Moreover, a political party may exercise its inherent powers only within the limits of the Election Code, and the Code specifically provides that a political party may make nominations for public office only by the methods provided within the Code. Tex.Elec.Code Ann. §§ 161.001, 161.003 (Vernon 1986).

The requirements for making replacement nominations are spelled out in section 145.036 of the Election Code. Subsections (a), (b) and (c) set out the events enabling the “appropriate executive committee” to act, depending on the timing of a candidate’s withdrawal. Subsection (d) sets out specific meeting and vote requirements and reads:

For the purpose of filling a vacancy, a majority of the committee’s membership constitutes a quorum. To be nominated, a person must receive a favorable vote of a majority of the members present.

(emphasis added). The State Democratic Executive Committee argues, and we agree, that section 145.036(d) requires an actual meeting of a quorum of the committee membership, and, in turn, the vote of a majority of the members present at the meeting.

If the people’s elected representatives want to authorize political parties to select nominees by telephone polls rather than by meetings wherein some exchange of ideas may occur, then they can amend the statute. However, we will apply the statute as it is now written and will not permit any party to disregard the statute by the enactment of rules to the contrary.

The Republican Executive Committee contends that this situation is not controlled by section 145.036 but is instead governed by section 145.038 which expressly states that in the event a local committee fails to act, “the state executive committee may nominate a candidate to fill the vacancy.” They rely on section 145.038’s failure to specifically repeat all the provisions of section 145.036. We conclude, however, that section 145.036 clearly sets out requirements of general applicability to the making of a replacement nomination by an executive committee, state or local. The local committee’s failure to act does not afford the State Republican Executive Committee a vehicle for avoiding the procedural requirements of section 145.036(d) any more than it would allow them to avoid the substantive time limits and other prerequisites set out in section 145.036(a), (b) and (c). I

The Secretary of State has a duty to certify for the ballot the legally nominated candidates of a party. Tex.Elec.Code Ann. § 161.008 (Vernon 1986). In turn, the authorities responsible for preparing the ballot must depend on the names being lawfully certified to them. Tex.Elec.Code Ann. §§ 52.003-004 (Vernon 1986). Mandamus will issue to compel the Secretary of State to perform his duties in compliance with law. Seay v. Latham, 143 Tex. 1, 182 S.W.2d 251 (1944). We therefore granted the writ of mandamus and ordered the Secretary of State to amend his certification to reflect only those candidates nominated in compliance with the Election Code and specifically to remove from the general election ballot the name of Patrick A. Pirtle as a candidate for Place 1, Court of Appeals for the Seventh Court of Appeals District.

CULVER, J., dissents in an opinion joined by COOK, J.