Dunn v. Slagle

• Decision Date: 13 February 1990
• Docket Number: No. B14-90-053-CV,B14-90-053-CV
• Citation: 783 S.W.2d 953
• Parties: D. Camille DUNN, Relator, v. Robert SLAGLE, Chairman, Texas Democratic Executive Committee, et al, Respondents. (14th Dist.)
• Court: Texas Court of Appeals

Page 953

783 S.W.2d 953

D. Camille DUNN, Relator, v. Robert SLAGLE, Chairman, Texas Democratic Executive Committee, et al, Respondents.

No. B14-90-053-CV

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

Feb. 13, 1990.

W. Troy McKinney, Joe H. Reynolds, George M. Bishop, Mark E. Steiner, Houston, for relator.

Harold D. Hammett, Fort Worth, for respondents.

A. Glenn Diddel, III, Houston, for real party in interest Brady.

Before PAUL PRESSLER, ROBERTSON and DRAUGHN, JJ.

MAJORITY OPINION

ROBERTSON, Justice.

We granted leave for relator to file a petition for writ of mandamus seeking to have Elaine Brady's name removed from the Democratic Primary Election Ballot for the position of Justice for the First District Court of Appeals, Place One. Named as respondents, in addition to Slagle, are the chairmen of the democratic party in each of the fourteen counties comprising the first court of appeals district: Anita Mayer, Austin County; Mark Davis, Brazos County; Ron Gay, Brazoria County; A.R. Brinkman, Burleson County; Guy Jackson, Chambers County; George Cason, Colorado County; Wayne Starr, Fort Bend County; Glenn Ferguson, Grimes County; M.T. Waddell, Galveston County; Jack Carter, Harris County; Troy Nash, Trinity County; Larkin Eakin, Waller County; Joe Henderson, Walker County; and Stanley Beard, Washington County. We grant the writ.

Relator Dunn is presently a Justice on the First District Court of Appeals and is seeking re-election. On January 2, 1990, Elaine Brady, the real party in interest, filed her application for a place on the Democratic Party 1990 General Primary Ballot for the position currently held by Dunn. Attached to her application were 40 pages of petitions containing 302 signatures, 52 more than the 250 required by TEX.ELEC.CODE ANN. § 172.021 (Vernon 1986). Relator challenges both Brady's application to be placed on the ballot and the validity of 184 of the 302 signatures contained in the petitions supporting the application.

Initially, relator contends Brady should be denied a place on the ballot because her application, while purporting to have been sworn before a notary public, did not contain the notarial seal or stamp. We have been unable to find any Texas cases in which this issue has been previously addressed. We find it unnecessary to address this issue, however, because we find fatal flaws concerning a sufficient number of signatures on Brady's petitions to bring the number of valid signatures below the required 250.

To be entitled to appear on the ballot, it was necessary for Brady's application to be accompanied by a petition, or petitions, containing the valid signatures of at least 250 qualified voters. TEX.ELEC.CODE ANN. §§ 172.021, 141.062, 141.063 (Vernon 1986). Section 141.063 mandates the requirements for a valid signature to a petition: (1) the signer must be a registered voter, and (2) the petition must include for each signer, among other matters, the signer's residence address and voter registration number.

Of the 302 signatures on Brady's petition, relator challenges a total of 184--58 as not being registered voters; 20 for failure to list a voter registration number; 18 for listing an incorrect voter registration number; 8 for failure to contain the signature of an officer administering the oath; 59 for failure to list either the city and/or zip code and/or street address; 4 for failure to print a name; 3 for witnessing their own signature; and 1 for listing the date of signing as a date after that contained in the jurat.

Relator attached to her mandamus petition affidavits from the Harris County Tax Assessor-Collector showing that 58 of Brady's petition signers "do not appear on the list of registered voters." Brady challenges the correctness of this assertion and has submitted evidence in her response to the mandamus petition that 31 of the 58 signatures do in fact represent registered voters. Brady does not, however, dispute the fact that 27 of the total 302 petition signers were not registered voters.

Next, 28 of the petition signers failed to include any voter registration number in the space provided. Brady does not dispute this fact. Because of overlaps with the above category, however, the net number challenged for failure to list a voter registration number is 6.

Relator attached to her mandamus petition a photocopy of the voter registration certificate, properly certified by the custodian, of 18 signers to Brady's petitions. These photocopies show that each of these 18 signers included an incorrect voter registration number on the petition. Brady does not dispute this fact. Again accounting for overlap, however, the net number of signatures challenged in this category is 15.

Brady also does not dispute the following: that 7 of her petition signers did not include a city or zip code in the appropriate blanks on the petition; that 24 of her petition signers did not indicate a city of residence in the appropriate blank on the petition; that 12 of her petition signers did not indicate a zip code in the appropriate blank on the petition; or that 2 of her petition signers failed to list a street address in the appropriate blank on the petition.

We pause to note two matters. First, it is extremely distressing to observe the lackadaisical manner in which Brady followed, or failed to follow, the statutory requirements for signatures on her petitions. On 35 of the 40 pages of petitions, Brady personally acted as the circulator and executed the required affidavit, excluding one which has no jurat at all. This is not, therefore, a situation in which other people can be blamed for the repeated instances of noncompliance. Second, Brady's counsel has carried forth this same flippant attitude in his brief in response to the petition for writ of mandamus and in his post-submission brief. He repeatedly castigates relator for seeking to have Brady removed from the ballot because "the omissions [of Brady] complained of are nothing more than hypertechnical errors that have not in any way frustrated the verification process." He reasons that since relator was able to verify the signatures on Brady's petition from the information contained thereon, relator has not been "defrauded, mislead or in any way prejudiced in any effort to identify which of the signatories are registered voters and whether or not they in fact signed the petitions as alleged in Ms. Brady's sworn papers." In his post-submission brief he misrepresents questions by the court during oral submission and ascribes to the panel statements he himself made.

Counsel plays too lightly with the Texas election code and the authorities construing it. The relator in Shields v. Upham, 597 S.W.2d 502, 504 (Tex.Civ.App.--El Paso 1980, no writ), likewise contended the petitions contained sufficient information enabling verification and that nothing more was required. The court, however, disagreed, holding that the provisions of Art. 13.08(d), the forerunner of § 141.063 of the election code, are mandatory. The court stated:

Even though there was sufficient information on the petition of Baxter Shields for the Republican Executive Committee to verify the signatures of 211 voters, and only 166 signatures were required to support the application for a position on the ballot, that is not the test. The Election Code does not require just a petition which may be verified. It requires specified information which this petition admittedly did not contain. Thus, there has not been a strict compliance with the statute....

Id. It has long been the rule in this state that candidates for public office must strictly comply with all statutory requirements in order to have their names placed on the ballot. Brown v. Walker, 377 S.W.2d 630, 632 (Tex.1974).

Turning now to the specific issues before us, we hold that the 27 unregistered voters who signed the petitions were not valid signers. Sparks v. Busby, 639 S.W.2d 713, 718 (Tex.Civ.App.--Tyler 1982, writ dism'd w.o.j.). We likewise hold that the 6 signatures that did not include a voter registration number were not valid. Gray v. Vance, 567 S.W.2d 16, 17 (Tex.Civ.App.--Fort Worth 1978, no writ). As to those who inserted an erroneous voter registration number, we fail to see the difference between the complete omission of a voter registration number and the inclusion of an incorrect number, whether this results from an honest mistake or intentional misrepresentation. Therefore, we hold that the 15 signatures which included an incorrect voter registration number were not valid.

Finally this brings us to those signatures which contain defects in the address of the signer. Section 1.005(17) of the election code defines the term "residence address" as "the street address and any apartment number, or the address at which mail is received if the residence has no address, and the city, state, and zip code that correspond to a person's residence." TEX.ELEC.CODE ANN. § 1.005(17) (Vernon 1986). In Gray v. Vance, 567 S.W.2d at 17, the Fort Worth court of appeals held that "street addresses ... and home city addresses" are mandatory, like the other requirements of Article 13.08(d), the forerunner of § 141.063 of the Texas...