Villarreal v. Bustamante, 15102
| Decision Date | 12 April 1972 |
| Docket Number | No. 15102,15102 |
| Citation | 480 S.W.2d 231 |
| Parties | Derly VILLARREAL, Relator, v. Carlos BUSTAMANTE et al., Respondents. |
| Court | Texas Court of Appeals |
Mann, Castillon, Freed & Kazen, Laredo, for relator.
Victor Woods, Zapata, Kenneth Oden, Alice, for respondents.
This is an original proceeding brought pursuant to Article 1735a, Vernon's Annotated Civil Statutes, whereby relator, Derly Villarreal, seeks a Writ of Mandamus to compel Carlos Bustamante, Chairman of the Democratic Executive Committee of Zapata County, to certify relator as a candidate for the position of Commissioner of Zapata County, Texas, Precinct 4 in the Democratic Primary Election to be held on May 6, 1972. Joined also as defendants are the members of the Commissioners' Court of Zapata County.
Respondent does not question relator's qualifications, but asserts that the term of Fidel Munoz, Commissioner of Precinct 4, does not terminate until December 31, 1974, and therefore this position is not on the ballot this election. In any event, it is urged that Munoz is a de facto officer and cannot be removed by this type proceeding.
On August 12, 1970, the Commissioners' Court of Zapata County ordered a redistricting of the Commissioners Precincts and Justices of the Peace Precincts in order to equalize the population in the precincts. See Avery v. Midland County, 406 S .W.2d 422 (Tex.1966). No effective data was contained in said order; however, on September 14, 1970, another order was entered to clarify the effective date of such redistricting, and it was ordered that same become effective after the General Election in November, 1970, to-wit on the 1st day of January, 1971. The Democratic Primary Election had been held in May of 1970, and Fidel Munoz had secured the nomination of the Democratic Party for the position of Precinct 4 after a contested election, but was unopposed in the General Election. Prior to the redistricting order taking effect, Precinct 4 was located solely in the southern edge of the County. Under the redistricting order, Precinct 4 is located near the center of the County and extends to the eastern boundary thereof. It is apparent that most of the population of the County is contained near the city of Zapata, which is located near the center of the county and therefore all precincts contain a portion of this area. It is seen from a comparison of maps of the old and new precincts that none of the territory in new Precinct 4 was contained in old Precinct 4. 1
Article 5, Section 18, of the Texas Constitution Vernon's Ann.St., requires a division of the counties of Texas '. . . from time to time, for the convenience of the people, . . . into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner, who shall hold his office for four years and until his successor shall...
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...the ousting of Moreno from office. Mandamus, however, will not lie to remove an elected public official from office. In Villarreal v. Bustamante, 480 S.W.2d 231, 232 (Tex.Civ.App.--San Antonio 1972, orig. proceeding), the court denied a petition for a writ of mandamus to force the chairman ......
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