Nelson v. Welch

• Decision Date: 19 September 1973
• Docket Number: No. 912,912
• Citation: 499 S.W.2d 927
• Parties: Scott Monroe NELSON et al., Relators, v. Louie WELCH et al., Respondents. (14th Dist.)
• Court: Texas Court of Appeals

Page 927

499 S.W.2d 927

Scott Monroe NELSON et al., Relators, v. Louie WELCH et al., Respondents.

No. 912.

Court of Civil Appeals of Texas Houston (14th Dist.).

Sept. 19, 1973.

Fred Reynolds, Houston, for appellant.

William A. Olson, City Atty., Joe Rollins, Houston, for appellee.

COULSON, Justice.

This is an original proceeding in which Scott Nelson and Jimmy Smith (relators) seek a writ of mandamus to compel Louie Welch, the Mayor of the City of Houston, and the Houston City Council to accept their applications to appear on the ballot as candidates for the office of Mayor in the municipal election scheduled for November 6. 1973. Relators have failed to tender either the filing fee required in the City Charter or submit petitions signed by qualified voters as required by municipal ordinance.

The issue is whether a Court of Civil Appeals has the authority to compel an election official to perform an act in the absence of an express duty to so act.

Article V, sec. 6, of the Charter of the City of Houston originally provided that a mandatory filing fee of $1,250 accompany all applications for a mayoralty candidacy. This provision was held unconstitutional, because no alternative to the filing fee was provided. Duncantell v. City of Houston, 333 F.Supp. 973 (S.D.Tex.1971); Socialists Workers Party v. Welch, 334 F .Supp 179 (S.D.Tex.1971). The City Council of Houston enacted an ordinance providing that, as an alternative to paying the filing fee, an applicant could submit a petition signed by a specific number of qualified voters. Houston, Tex., Ordinance 73--1487, August 1, 1973.

Relators contend that the City Ordinance cannot amend the City Charter. If the unconstitutional charter section is also a nullity, they urge that there are no restrictions upon the applications to appear on the ballot.

This Court's original jurisdiction to entertain suits of this nature is conferred by Article 1735a, Tex.Rev.Civ.Stat.Ann. (1967), which provides in pertinent part: '(A)ny court of civil appeals shall have jurisdiction and authority to issue the writ of mandamus . . . against any public officer . . . to compel the performance . . . Of any duty imposed upon them, respectively, by law, in connection with the holding of any general, special, or primary election.' (emphasis supplied). The clear language of the statute dictates a writ of mandamus will issue only upon a showing that an election officer has failed to discharge a duty imposed by statute. Relators' cause rests on the contentions that the City Charter section is unconstitutional and therefore void and that the City Ordinance is invalid. If this is true, no provision remains to impose a duty 'by law' upon respondents to accept the applications. Thus, this Court would have no authority to issue a writ of mandamus against respondents.

In Lydick v. Chairman of Dallas County Repub. Ex. Com., 456 S.W.2d 740 (Tex.Civ.App.--Dallas 1970, no writ), a writ of mandamus was sought under Article 1735a to compel party officials to count write-in votes cast in a party primary. The Texas Election Code prohibited write-in votes in a primary election for the offices concerned. Tex.Rev.Civ.Stat.Ann. art. 13.09(b) (1967). Relators there urged that this statute...