McGuire v. Hughes, 17477

• Decision Date: 24 February 1970
• Docket Number: No. 17477,17477
• Citation: 452 S.W.2d 29
• Parties: A. L. McGUIRE, Relator, v. Charles E. HUGHES, Respondent.
• Court: Texas Court of Appeals

Page 29

452 S.W.2d 29

A. L. McGUIRE, Relator, v. Charles E. HUGHES, Respondent.

No. 17477.

Court of Civil Appeals of Texas,

Dallas.

Feb. 24, 1970.

Jack G. Kennedy, Brown, Kennedy, Hill & Minshew, Sherman, for relator.

Charles E. Hughes, Sherman, for respondent.

Buddy Dicken, Sherman, amicus curiae.

CLAUDE WILLIAMS, Justice.

This is an original proceeding wherein Relator A. L. McGuire asks us to issue a writ of mandamus directing the Respondent Charles E. Hughes, Democratic County Chairman of Grayson County, Texas, to omit from the official ballot of the primary election of the Democratic Party in Grayson County, Texas, to be held on May 2, 1970, the office of Justice of the Peace, Precinct 1, Place 1, Grayson County, Texas.

A. L. McGuire is the duly elected and acting Justice of the Peace, Precinct 1, Place 1, Grayson County, Texas. Respondent Charles E. Hughes is the duly elected and acting Democratic County Chairman of the Democratic Party Executive Committee of Grayson County, Texas.

Relator was elected to the office of Justice of the Peace, Precinct 1, Place 1, Grayson County, Texas, in 1960, for a term of four years, which he served. In 1964 he was re-elected for another four-year term, which he served. By order dated January 24, 1967, the Commissioners Court of Grayson County, Texas abolished the office of Justice of the Peace, Precinct 1, Place 2, Grayson County, Texas. In 1968 Relator was again a candidate for the office of Justice of the Peace, Precinct 1, Place 1, in the primary election of the Democratic Party held in May 1968. He was duly elected as the Democratic nominee. Thereafter he was elected to said office in the general election held in November 1968. The ballot in both the primary and general elections of 1968 did not contain the words 'unexpired term' printed after the title to the Office of Justice of the Peace, Precinct 1, Place 1.* Thereafter in January 1969 Relator was sworn into said office and has continued to serve in said position since that time.

On January 13, 1969 the Office of the Secretary of State of Texas wrote Paul E. Lee, County Clerk of Grayson County, Texas, a letter concerning the office of the Justice of the Peace, Precinct 1, Place 1, Grayson County, Texas. Therein it was stated, as the opinion of the Secretary of State, that in view of the abolition of the other justice precinct that Precinct 1, Place 1, was a 'one-justice' precinct and that Relator had really been elected in 1968 to serve the unexpired portion of the regular term and that such term would expire December 31, 1970. After receipt of this letter Paul E. Lee, County Clerk, advised Respondent Charles E. Hughes that he would place the office of Justice of the Peace, Precinct 1, Place 1, on the ballot in the general election and that the County Chairman should do the same for the Democratic Primary. On Friday, January 30, 1970 Relator was informed by Respondent, acting in his capacity as Democratic County Chairman, that an election for the office of Justice of the Peace, Precinct 1, Place 1, Grayson County, would be held in the primary election of the Democratic Party to be held on May 2, 1970 and that if Relator desired to be a candidate for such office it would be necessary that he file his application as a candidate before the deadline for filing, to-wit, February 2, 1970. Respondent also advised Relator that one other candidate had already filed his application to be placed on the ballot. Thereafter, before the filing deadline other candidates filed their applications to be placed on the official ballot for said office.

Relator, through his attorney of record, requested Respondent not to place any names of candidates on the official ballot for the reason that Relator had been duly and legally elected in 1968 for a period of four years and such term would not expire until December 31, 1972. Respondent, acting upon information and opinion rendered to him by the County Clerk as well as the Secretary of State of the State of Texas, and having no personal interest in the matter but acting solely in his official capacity, informed Relator that an election would be held for said office in the primary election of the Democratic Party and that all candidates who timely and properly filed their applications would be placed on the official ballot and that the winner would be the Democratic nominee for Justice of the Peace, Precinct 1, Place 1, Grayson County, Texas, in the general election to be held in November 1970. It is this action that Relator asks us to prevent.

We have jurisdiction of this matter pursuant to the specific provisions of Art. 1735a, Vernon's Ann.Civ.St. of Texas. The primary question to be decided is whether the Office of Justice of the Peace, Precinct 1, Place 1, Grayson County, Texas, is required to be filled by the 1970 general election of the State of Texas.

Respondent advances no legal argument for or against Relator's position, candidly stating that he is in no way personally a party to this suit and that in expressing his purpose to include the...