






In re Larry Elwell















IN THE
TENTH COURT OF APPEALS
 

No. 10-02-213-CV

IN RE LARRY ELWELL

 

 Original Proceeding
                                                                                                                

DISSENTING OPINION
                                                                                                                

      Texas courts have used a simple distinction to determine who should suffer the consequences
of failing to follow the election code.  Cf. Painter v. Shaner, 667 S.W.2d 123 (Tex. 1984); In re
Gibson, 960 S.W.2d 418 (Tex. App.—Waco 1998, orig. proceeding).  If the failure to comply
with the election code is something within the candidate’s control, the candidate is kept off the
ballot.  Gibson, 960 S.W.2d at 421.  Alternatively, the candidate does not suffer the consequences
caused by an election official’s failure to perform a ministerial duty.  Painter, 667 S.W.2d at 125;
see also Davis v. Taylor, 930 S.W.2d 581 (Tex. 1996).  This distinction is workable and serves
the greater public good of certainty and predictability.
      It is undisputed that Elwell failed to timely file an application for his name to be placed on the
ballot.  I have not found any conduct of an election official that I can say was a violation of a
ministerial duty owed to Elwell or the voters.  Accordingly, I would deny the petition for writ of
mandamus.
      My sympathies go out to the election officials across this great State of Texas, in particular
those in this district.  You no longer can safely reject what is obviously a late or deficient filing. 
We cannot give you much guidance about what excuses you can accept for a late or incomplete
application; we will only decide those issues as they present themselves.  But because you no
longer have the assurance of being able to rely on the candidate’s failure to comply with the
election code as a basis to reject an application, you will undoubtedly generate a lot of hard
feelings and litigation by those you keep off the ballot, by those you let on the ballot, and by those
who will have opponents because you put someone on the ballot that may have filed a late or
defective application.
      If we were denying this petition, as I contend we should, my sympathies would be extended
to Mr. Elwell and all those people that worked so hard to complete the petitions necessary for him
to run as an independent candidate.  I could only offer them the assurance of knowing that if it had
been otherwise, if Elwell had done everything necessary to get on the ballot but was prevented by
an election official, I would, with equal fervor, enforce the letter of the law against that election
official.  For Elwell and his supporters, with the benefit of hind-sight, it would have been
preferable if the documents had been filed well in advance of the deadline so that this type
problem, one that arose at the last minute, could have been avoided.
      Because the majority grants relief even though  Elwell’s failure to comply with the election
code was within his control, I respectfully dissent.
 
                                                                         TOM GRAY
                                                                         Justice

Dissenting opinion issued and filed August 7, 2002
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0;                                            Chief Justice

Concurring opinion delivered and filed May 12, 2004
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