Whitehead v. Julian, B--3205
| Decision Date | 23 February 1972 |
| Docket Number | No. B--3205,B--3205 |
| Parties | Emmett H. WHITEHEAD, Relator, v. W. D. JULIAN, Respondent. |
| Court | Texas Supreme Court |
Small, Herring, Craig & Werkenthin, C. C. Small, Jr. and Lawrence S. Smith, Austin, Tex. Sallas, Griffith & Merriwether, J. B. Sallas, Crockett, for relator.
W. D. Julian, Jr., Crockett, for respondent.
This is an original petition for writ of mandamus seeking to compel Respondent, Democratic County Chairman of Houston County, to accept and file the application of Relator to have his name placed on the ballot in Houston County as a candidate for the Democratic nomination for State Representative. We grant the petition but direct that the writ not be issued unless the Chairman should refuse to accept the application after this judgment becomes final.
On January 31, 1972, the Relator tendered his application to the Respondent. The Respondent refused to file the application on the ground that the Relator was ineligible for the office under Article III, Section 19 of the Texas Constitution, Vernon's Ann.St., because he is the Mayor of Rusk, Texas, receiving $50 per month as an expense allowance. The City Council minutes in part read as follows:
Relator as Mayor receives no compensation above expenses. Relator by affidavit states that his expenses exceed the $50 monthly expense allowance and his affidavit is uncontroverted by Respondent. The sworn statement, being uncontroverted is accepted as true. Uncontroverted allegations in Relator's petition need not be proved. Patton v. Terrell, 101 Tex. 221, 105 S.W. 1115 (1907); vol. 6, Texas Practice Series, Injunctions and Other Extraordinary Proceedings, § 485 (1957).
Article III, Section 19 of the Texas Constitution provides as follows:
' § 19. Ineligibility of persons holding other offices
Sec. 19. 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.'
The narrow question presented to this court is whether the $50 expense allowance makes the Mayor's position a 'lucrative' office within the constitutional provision above quoted, thus prohibiting him from being a candidate for election to...
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