Petition for Writ of Mandamus Denied and Opinion filed December 19, 2019.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-19-00992-CV



                     IN RE GEORGE POWELL, Relator


                          ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                             351st District Court
                            Harris County, Texas
                            Trial Court Cause No.

                         MEMORANDUM OPINION

      On Monday, December 16, 2019, relator George Powell filed a petition for
writ of mandamus in this Court. See Tex. Elec. Code §§ 273.061–.063; see also
Tex. R. App. P. 52. In the petition, relator asks this Court to compel Lillie
Schechter, Chair of the Harris County Democratic Party; Jennifer Halvorsen,
Secretary of the Harris County Democratic Party; Giordaun Baity, Elections
Director for the Harris County Democratic Party; and the Harris County
Democratic Party (collectively “respondents”) to accept his application, certify him
as a candidate for the 351st District Court, and include his name as a candidate for
the 351st District Court on the March 2020 Democratic Primary Election ballot
with notice to the Texas Secretary of State, State Chair of the Texas Democratic
Party, and the Harris County Clerk.1

        Respondents filed a response on December 17, 2019. On December 18, 2019,
relator filed a reply. In the appendix is a temporary restraining order (“TRO”) in a
separate proceeding in the 164th District Court setting a hearing on relator’s application
for temporary injunction on January 7, 2020, to determine whether the TRO should be
made temporary injunction, pending a full trial on the merits. By agreement of the
parties, that order will not expire until after the hearing on January 7, 2020.

        Relator’s application for a place on the general primary election ballot was
rejected for two reasons:

            • The application failed to include relator’s residential address; and

            • relator tendered a filing fee of $1,500 rather than the requisite $2,500.

        In their response, respondents relate that the first reason for rejecting
relator’s application was rescinded by letter dated December 14, 2019.
Accordingly, we do not address it but turn to the second reason.

        The filing fee for a “district or criminal district judge of a court in a judicial
district wholly contained in a county with a population of more than 1.5 million” is


        1
          Election Code section 172.022(a) requires an “application for a place on the general primary
election ballot must be filed with . . . the county chair or the secretary, if any, of the county executive
committee, for an office filled by voters of a single county.” Tex. Elec. Code Ann. §172.022(a) (Supp.).
Because we deny the petition for a writ of mandamus, we need not decide whether anyone other than the
county chair or secretary of the county executive committee is a party against whom relief has been
properly sought in this original proceeding. See Tex. R. App. P. 3.1(h)(2) (defining “respondent”).
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$2,500. Tex. Elec. Code § 172.024(a)(10). Relator asserts that because he loaned
another candidate $2,500 to pay her filing fee, he tendered at least the full amount.
Although the loan is evidence that relator could have timely paid the filing fee, the
undisputed fact is that he did not. Relator’s filing fee was underpaid by $1,000.

        In his reply, relator states that he tendered the additional $1,000 to the Harris
County Democratic Party on December 17, 2019, along with a curative
application. Relator argues that he has the right to cure the defect because he was
misinformed by Marc Malacoff that the correct filing fee was $1,500. Relator also
contends that respondents Lillie Schecter and Jennifer Halvorsen were not present
and had they been, the error would not have occurred.

        In a separate proceeding in the 164th District Court, that court has signed
temporary restraining order, which, among other things, compels respondents to
provide relator discovery in the form of the depositions of Lillie Schecter and Marc
Malacoff.2 It is well-established Texas law that we may not deal with disputed
areas of fact in an original mandamus proceeding. In re Angelini, 186 S.W.3d 558
(Tex. 2006) (orig. proceeding); Brady v. Fourteenth Court of Appeals, 795 S.W.2d
712, 714 (Tex. 1990) (orig. proceeding); Donald v. Carr, 407 S.W.2d 288, 292
(Tex. App.—Dallas 1966, no writ) (holding that predecessor statute to Election
Code section 273.061 “does not change this court from an appellate court to a trial
court”). Before we may issue a writ of mandamus, relator must have a clear legal

        2
          The district court may determine facts in an original proceeding for a writ of mandamus initiated
in that court. See Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991); see also Tex. Const. art.
V, § 8 (jurisdiction of district court); Tex. Gov’t Code Ann. § 24.007 (Supp.) (same).




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right to performance of the act he seeks to compel and the duty of the officer
sought to be compelled must be one clearly fixed and required by the law. In re
Cercone, 323 S.W.3d 293, 295 (Tex. App.—Dallas 2010, no pet.). Relator has not
met his burden of proof that no disputed facts exist and thus the duty to act is clear.
Longoria v. Robertson, 669 S.W.2d 870, 871 (Tex. App.—Corpus Christi 1984, no
writ) (citing Jessen Assos., Inc. v. Bullock, 531 S.W.2d 593, 602 (Tex. 1975)).
Accordingly, the petition for writ of mandamus is denied.3



                                                     PER CURIAM

Panel consists of Justices Zimmerer, Spain, and Hassan.




3
    The motion for leave to file a reply by the interested party, Natalia Cornelio, is denied as moot.
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