Stevens v. Cain, 07-87-0187-CV

• Decision Date: 21 August 1987
• Docket Number: No. 07-87-0187-CV,07-87-0187-CV
• Citation: 735 S.W.2d 694
• Parties: John D. STEVENS, Relator, v. Honorable Don E. CAIN, Judge, Respondent.
• Court: Texas Court of Appeals

Page 694

735 S.W.2d 694

John D. STEVENS, Relator, v. Honorable Don E. CAIN, Judge, Respondent.

No. 07-87-0187-CV.

Court of Appeals of Texas,

Amarillo.

Aug. 21, 1987.

Frank Lay, Borger, for relator.

Vance Jones, Borger, for party-in-interest.

Before the court en banc:

REYNOLDS, Chief Justice.

We accepted this original proceeding under the tentative view that the issues presented were whether there may be posed and resolved in a mandamus action this question: After it is finally determined in an election contest that the general election held for a precinct office is void, is the district judge empowered to declare that the office, occupied by the qualified contestee, is vacant? We now conclude, upon an examination of the record after submission, that we cannot reach the question presented. Therefore, we will deny mandamus relief.

The underlying facts are that at the November, 1986 general election, there was a contest between relator John D. Stevens and Beverly McClure, the real party in interest, for the office of Justice of the Peace, Precinct No. 2, Hutchinson County. The official result of the election showed that Stevens won by a margin of seventeen votes.

McClure timely filed an election contest in the district court, seeking to have the election declared void and a new election ordered. Before the election contest was heard by the court, Stevens qualified and took office on 1 January 1987.

Thereafter, the respondent, Honorable Don E. Cain, Judge of the 223rd Judicial District Court of Gray County, sitting by assignment, heard the contest. Judge Cain found that eligible voters had been prevented from voting due to an accident or mistake of an election officer or official, and that the true outcome of the election cannot be ascertained. He then decreed that the election was void and that a new election should be held after the judgment became final.

Stevens attempted to appeal from the judgment. We dismissed the appeal because it was not timely perfected. Stevens v. McClure, 732 S.W.2d 115 (Tex.App.--Amarillo 1987, no writ).

After the judgment became final on 3 July 1987, Judge Cain entertained McClure's motion to set a new election date and prescribe the procedures therefor. Finding that the judgment declaring the election for the justice of the peace office void became final on 3 July 1987 and that a vacancy has existed in that office since that date, Judge Cain ordered, adjudged and decreed on 14 July 1987 that an election for the office be held on Tuesday, 3 November 1987 and the prescribed procedure therefor.

By his mandamus action, Stevens, representing that respondent's order effectively removed him from office, seeks to have this Court "vacate that portion of Judge Don E. Cain's July 14, 1987 order which declared the position of Justice of the Peace, Precinct No. 2 of Hutchinson County, Texas vacant and reinstate Relator into said position until the rightful holder of the position is determined." Stevens, as well as McClure, misperceives the effect of respondent's order.

Nowhere in the decretal portion of the written instrument does Judge Cain decree that the office is vacant. He merely made a finding, prepatory to making his decree for a new election, that the office has been vacant since 3 July 1987.

It is elemental that recitations preceding the decretal portion of a written instrument, albeit proper inclusions, form no part of the decree, Chandler v. Reder, 635 S.W.2d 895, 897 (Tex.App.--Amarillo, 1982, no writ), for "[i]t is the court's order that counts, not the stated reasons...." Jampole v. Touchy, 673 S.W.2d 569, 574 (Tex.1984). Thus, Judge Cain's findings, including the one of vacancy,...