Sears v. Bayoud, C-9506

• Decision Date: 14 February 1990
• Docket Number: No. C-9506,C-9506
• Citation: 786 S.W.2d 248
• Parties: Ross SEARS, Relator, v. George BAYOUD, Secretary of State of the State of Texas, et al., Respondents.
• Court: Texas Supreme Court

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786 S.W.2d 248 Ross SEARS, Relator,
v.
George BAYOUD, Secretary of State of the State of Texas, et
al., Respondents. No. C-9506. Supreme Court of Texas. Feb. 14, 1990. OPINION

GONZALEZ, Justice.

This is an election mandamus. The issue is whether the requirement in article V, section 2 of the Texas Constitution that a candidate for the supreme court be a lawyer for at least ten years must be satisfied by the day of the general election or by the time service in office begins.

Relator Ross Sears, a candidate in the Democratic primary for Justice, Place 2, Supreme Court of Texas, filed this petition for writ of mandamus. He is asking us to order respondent Fred Meyer, Chairman of the Republican Party of Texas, to declare Lamar McCorkle, a candidate in the Republican

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primary for Justice, Supreme Court of Texas, Place 2, ineligible. Sears is also requesting that we order Meyer to exclude McCorkle's name from the Republican primary ballot for 1990, and order Respondent George Bayoud, the Texas Secretary of State, not to certify McCorkle as the nominee for the office of Justice of the Supreme Court of Texas. Two other candidates for the Democratic Party's nomination for place 2, Bob Gammage and C.L. (Scrappy) Holmes, have adopted Sears' pleadings and join in his prayer for relief. Respondent Fred Meyer filed a Motion to Dismiss urging that jurisdiction is not proper in this court. JURISDICTION

This court has jurisdiction to entertain the petition and to issue the writ by virtue of the Texas Election Code, section 273.061, which provides:

Jurisdiction

The supreme court or a court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer

TEX.ELEC.CODE § 273.061 (Vernon 1986), and section 161.009, which provides:

Party Officer Subject to Mandamus

The performance of a duty placed by this code on an officer of a political party is enforceable by writ of mandamus in the same manner as if the party officer were a public officer.

TEX.ELEC.CODE § 161.009 (Vernon 1986).

Respondents contend that this court does not have jurisdiction, asserting that Texas Election Code, section 273.063(a), and Texas Rule of Appellate Procedure 121(a)(1) require a mandamus proceeding to first be filed in the court of appeals. Section 273.063(a) of the Election Code does not require that an original petition for writ of mandamus be filed in the court of appeals prior to filing in the supreme court. Section 273.063 concerns venue and merely provides in which court of appeals district the petition must be filed if the relator chooses to file in the court of appeals.

Texas Rule of Appellate Procedure 121(a)(1) provides:

When the court of appeals is authorized to exercise concurrent jurisdiction over an original proceeding, the motion should first be presented to the court of appeals. The motion for leave to file in the supreme court shall state the date of presentation of the petition to the court of appeals and that court's action on the motion or petition or the compelling reason that a motion was not first presented to the court of appeals.

TEX.R.APP.P. 121(a)(1) (emphasis added). The rule does not stand as an absolute bar to the filing of a petition in the supreme court without having first filed in the court of appeals. See also Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 520-21 (1930); Westervelt v. Yates, 145 Tex. 38, 194 S.W.2d 395 (1946); Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269 (1944); Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944). In Thiel v. Harris County Democratic Executive Committee, 534 S.W.2d 891 (Tex.1976), we granted a petition for writ of mandamus directing the Harris County Democratic Committee to exclude from the primary ballot the name of a candidate for state representative. In Thiel, we reiterated the general rule now embodied in rule 121(a)(1): "[o]rdinarily the Court encourages that relief of this nature be sought in the court of civil appeals." Id. at 895. We then explained that the petition was entertained because the matter involved was of "statewide application" and additionally because there was a conflicting court of appeals decision involving different parties. Id.

In his motion for leave to file petition for writ of mandamus, Sears asserts that the issue before the court is of "statewide application." He additionally states that "the urgency of the time constraints" necessitates immediate review by this court. His motion states that if this dispute is not resolved by final judgment before the beginning

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of absentee balloting, it may become moot by virtue of section 141.034 of the Election Code, which provides that "[a]n application for a place on the ballot may not be challenged for [non]compliance with the applicable requirements as to form and procedure after the day before the beginning of absentee voting by personal appearance...." TEX.ELEC.CODE § 141.034 (Vernon 1986). Absentee voting for the primary has not yet started. We conclude that Sears has complied with rule 121(a)(1). ¹ MERITS

Sears contends that McCorkle is ineligible to serve as a justice of the Supreme Court of Texas under article V, section 2 of the Texas Constitution, which provides in part:

No person shall be eligible to serve in the office of Chief Justice or Justice of the Supreme Court unless the person is licensed to practice law in this state and is, at the time of election, a citizen of the United States and of this state, and has attained the age of thirty-five years, and has been a practicing lawyer, or a lawyer and judge of a court of record together at least ten years.

TEX. CONST. art. V, § 2 (Vernon Supp.1990) (emphasis added).

All parties agree that on the date of the general election, McCorkle will be several days short and will not have been "a practicing lawyer, or lawyer and judge of a court of record together at least ten years." ² Pursuant to Texas Election Code, section 41.002 (Vernon 1986), the 1990 general election of justices for the Supreme Court of Texas is to be held on November 6, 1990. The official records of the Supreme Court of Texas establish that McCorkle was licensed to practice law in Texas on November 24, 1980. The records of the Board of Law Examiners of the Supreme Court of Texas reflect that the November 1980 candidates for licensure, including McCorkle, were not certified to the supreme court as eligible for licensing until November 17, 1980. McCorkle argues that the true and correct copy of his oath of office, attached to the back of his license, indicates that he took the oath of office on November 10, 1980. Even so, McCorkle will not have been "a practicing lawyer, or a lawyer and judge of a court of record together at least ten years" at "the time of election." By the most favorable reading, McCorkle will miss eligibility by a matter of a few days. Nonetheless, a candidate is either eligible or he is not. Application of the rule of de minimis non curat lex ³ would sacrifice the mandate of article V, section 2 of the constitution in favor of expediency.

Thus, the issue to be resolved is whether article V, section 2 of the Texas Constitution requires a candidate for the Supreme Court of Texas to have been a lawyer for at least ten years at the time of the election or at the time the candidate would assume office. Sears argues that the phrase "at the time of election" modifies each of the subsequent requirements in article V, section 2 that the candidate: (1) be "a citizen of the United States and of this State;" (2) have "attained the age of thirty-five years;" and (3) have "been a practicing lawyer, or a lawyer and judge of a court of record together at least ten years."

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McCorkle argues that the phrase "at the time of the election" modifies only the requirement that a candidate be "a citizen of the United States and of this state."

We have repeatedly recognized the principle that constitutional provisions which restrict the right to hold public office should be strictly construed against ineligibility. Brown v. Meyer, 787 S.W.2d 42 (Tex.1990); Hall v. Baum, 452 S.W.2d 699, 702 (Tex.1970), appeal dismissed, 397 U.S. 93, 90 S.Ct. 818, 25 L.Ed.2d 79 (1970); Willis v. Potts, 377 S.W.2d 622, 623 (Tex.1964). However, "[t]he Texas Constitution derives its force from the people of Texas. This is the fundamental law under which the people of this state have consented to be governed." Edgewood Independent School District v. Kirby, 777 S.W.2d 391, 394 (Tex.1989). Accordingly, in construing a constitutional provision, this Court has always given effect to the intention of the framers and ratifiers of the provision. See Id., at 394-95; Deason v. Orange County Water Control Improvement District No. One, 151 Tex. 29, 244 S.W.2d 981, 984 (1952); Koy v. Schneider, 110 Tex. 369, 218 S.W. 479, 481 (1920).

The delegates to the Constitutional Convention of 1875 were the initial drafters of article V, section 2. There were no eligibility requirements for supreme court justices in the 1845 and 1861 Texas Constitutions. See TEX. CONST. art. IV, § 2 (1845); TEX. CONST. art. IV, §§ 2-5 (1861). Similarly, the Reconstruction Constitution of 1869 provided that the justices "shall be appointed by the Governor," and contained no eligibility requirements. See TEX. CONST. art. V, § 2 (1869). In the 1866 Constitution, however, article IV, section 2 required that a Supreme Court Justice "shall have...