Kirk v. Gordon, A-10008

Decision Date04 March 1964
Docket NumberNo. A-10008,A-10008
Citation376 S.W.2d 560
PartiesTruman P. KIRK, Relator, v. Tom GORDON et al., Respondents.
CourtTexas Supreme Court

Truman P. Kirk, Harris Toler, Abilene, for relator.

Tom Gordon, Tom Todd, James E. Robinson, Abilene, for respondents. atLavern Harris, Kerrville, amicus curiae.

HAMILTON, Justice.

This is an original petition for writ of mandamus brought by relator Truman P. Kirk seeking to compel Tom Gordon as Chairman of the Taylor County Democratic Executive Committee and the Taylor County Democratic Executive Committee to omit the name of respondent Tom Todd from the official ballot as a candidate for the Democratic nomination for State Representative for the 84th District, Place No. 1.

Relator is a duly qualified Democratic candidate for said office. Respondent Tom Todd is presently District Attorney of the 104th Judicial District, whose present term expires on December 31, 1964.

Relator maintains that Todd is ineligible to be elected to the Legislature at the November general election because he is now, as District Attorney, holding a lucrative office under this state to which he was elected for a term which does not expire until December 31, 1964. Otherwise it is admitted that respondent is eligible. Relator says that Todd is ineligible because the term of the office as a member of the House of Representatives to which he seeks to be elected shall be two years from the date of election, which necessarily will be before his present term of office as District Attorney expires on December 31, 1964. Relator further says that respondent, being ineligible to hold the office of State Representative, should not have his name placed upon the primary ballot.

(1, 2) We hold that the relator is correct in his contention and that the respondent Tom Todd is not eligible to be elected to the House of Representatives at the next general election in November, and for that reason should not have his name placed upon the Democratic primary ballot as a candidate for State Representative, and the mandamus requested will issue.

We have been compelled to reach this conclusion by the plain and unambiguous applicable provisions of the Constitution and the Texas Election Code. We quote the applicable provisions below:

Article III, Section 19, Constitution of Texas, Vernon's Ann.St.:

'No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.'

Article III, Section 4, Constitution of Texas:

'The members of the House of Representatives shall be chosen by the qualified electors, and their term of office shall be two years from the day of their election.'

Article 1.05, Texas Election Code, V.A.T.S.:

'No person shall be eligible to be a candidate for, or to be elected or appointed to, any public office in this state unless he shall be eligible to hold such office under the Constitution and laws of this state * * *. No ineligible candidate shall ever have his name placed upon the ballot at any primary, general or special election; and no ineligible candidate shall ever be voted upon nor have votes counted for him at any such primary, general or special election. * * *'

Article 1.06, Texas Election Code:

'* * * and the name of no ineligible person, under the Constitution and laws of this State shall be certified by any party, committee, or any authority authorized to have the names of candidates placed upon the primary ballots at any primary election in this State; * * *.'

(3) We reject respondent's contention that this court does not have jurisdiction of this matter because of Article III, Section 8 of the Constitution, which provides as follows:

'Each House shall be the judge of the qualifications and election of its own members; but contested...

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12 cases
  • Wentworth v. Meyer, D-2662
    • United States
    • Texas Supreme Court
    • September 16, 1992
    ...when the office-holder resigns, even if he resigns only a day after he begins holding office. Id. at 619; see also Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964) (district attorney who proffered letter of resignation could not run for state This interpretation of section 19 is at odds with the r......
  • Dawkins v. Meyer, D-2032
    • United States
    • Texas Supreme Court
    • February 25, 1992
    ...Potts, 377 S.W.2d 622, 623 (Tex.1964) (city councilman); Lee v. Daniels, 377 S.W.2d 618 (Tex.1964) (county commissioner); Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964) (district attorney); Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944) (county superintendent of schools); see also Smith......
  • Fashing v. Moore
    • United States
    • U.S. District Court — Western District of Texas
    • January 23, 1980
    ...office extends into the term of the Legislature to which he seeks election, even if he has vacated the previous office. Kirk v. Gordon, 376 S.W.2d 560 (Tex.Sup.1964); Lee v. Daniels, 377 S.W.2d 618 (Tex.Sup.1964); Willis v. Potts, 377 S.W.2d 622 (Tex.Sup. 1964). Furthermore, the term "lucra......
  • Wentworth v. Meyer
    • United States
    • Texas Court of Appeals
    • June 26, 1992
    ...no exceptions as to ineligibility once it has been established." Id. (emphasis added). A similar result was reached in Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964). In Kirk, the supreme court held that district attorney Tom Todd was ineligible to be a candidate for state representative. The co......
  • Request a trial to view additional results

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