






In re Larry Elwell
















IN THE
TENTH COURT OF APPEALS
 

No. 10-02-213-CV

IN RE LARRY ELWELL

 

 Original Proceeding
                                                                                                                

O P I N I O N
                                                                                                                

      In this original proceeding, Relator Larry Elwell seeks to compel County Judge Roger
Harmon of Johnson County, Texas, the Respondent, to certify him as an Independent Candidate
in the November General Election for the office of County Judge of Johnson County.  Tex. Elec.
Code Ann. § 142.010 (Vernon Supp. 2002).  Relator tendered an “Independent Candidate’s
Application for a Place on the General Election Ballot” to Respondent.  Respondent found that the
application did not comply with the applicable provisions of the Election Code and notified Relator
that his name would not appear on the November ballot.  Relator seeks relief by way of
mandamus, which we have authority to issue.  Id. § 273.061 - .063 (Vernon 1986 & Supp. 2002). 
After requesting a response and hearing oral argument, we believe that Relator is entitled to the
relief he has requested.  Because this dispute involves an election in progress, we will try to set
forth the essential facts and our reasons as briefly as possible.
Facts
      Relator filed a Declaration of Intent to be an Independent Candidate with Respondent, who
acknowledged the filing by letter.  Id. § 142.001 (Vernon 1986).  With the letter, Respondent sent
a package of information, including a copy of a Memorandum he had received from the Secretary
of State of Texas outlining generally the steps a potential independent candidate must take to
appear on the November ballot.  That memo includes the statement: “. . . the independent
candidates must also file an application, together with a petition, no later than 5:00 p.m. on May
9, 2002.”  Respondent’s letter also refers to an application and a petition.
      At approximately 4:00 p.m. on May 9, Relator delivered a folder to Sandy Sims in
Respondent’s office, which he believed contained all the necessary documents for Respondent to
certify his name as an independent candidate for the office of County Judge.
  After Elwell left,
Sims checked the contents of the folder and discovered that, although it contained the necessary
petition signed by the requisite number of qualified voters in the county, no application form was
included.  Id. § 142.004(a), (b) (Vernon 1986) (application required, accompanied by a petition);
Id. § 141.062 (Vernon 1986) (requisites of a petition).
      Shortly thereafter, Sims placed a telephone call to Relator at the number he had provided on
his Declaration form.  Finding Relator unavailable, she advised the person answering the phone
that an application was not included in the folder and that the deadline for filing was 5:00 p.m.
that day.  Elwell, who had left for Fort Worth before Sims called, was informed by his wife of
the missing application, and he returned to Johnson County.  At approximately 4:20 p.m., Alden
Nellis, a friend of Relator, went to Respondent’s office and picked up a blank application form. 
Sims left the office at 4:30.
      Relator acknowledges that he did not arrive at Respondent’s office at the Johnson County
Courthouse until approximately 5:20 p.m. on May 9 and, finding it closed, did not file his
application with Respondent until sometime between 8:15 a.m. and 8:45 a.m. on May 10. 
Respondent rejected his candidacy on the basis that his application was not filed before the
deadline of 5:00 p.m. on May 9.  Id. § 142.006 (Vernon Supp. 2002).
“Strict Compliance” or “Just and Reasonable Result”?
      Before we begin our discussion, we take note of the difference in the approach taken by the
courts of appeals, including this court in In re Gibson, and that taken by the Texas Supreme Court,
when presented with questions about access to the ballot by potential candidates.  The courts of
appeals generally speak in terms of “mandatory statutes,” strict interpretation of those statutes,
and “strict compliance” with statutes by candidates.  E.g., In re Triantaphyllis, 68 S.W.3d 861,
868 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding); see In re Gibson, 960 S.W.2d
418, 421 (Tex. App.—Waco 1998, orig. proceeding); Escobar v. Sutherland, 917 S.W.2d 399,
404 (Tex. App.—El Paso 1996, orig. proceeding); Hoot v. Brewer, 640 S.W.2d 758, 761 (Tex.
App.—Houston [1st Dist.] 1982, orig. proceeding).  On the other hand, the Supreme Court has
recently spoken of construing laws “broadly in favor of eligibility of interest in access to the
ballot.”  Davis v. Taylor, 930 S.W.2d 581, 583 (Tex. 1996) (orig. proceeding) (citing Pilcher v.
Rains, 853 F.2d 334, 336 (5th Cir. 1988)); but see Wallace v. Howell, 707 S.W.2d 876, 877
(Tex. 1986) (orig. proceeding) (statutory mandates to be met by candidates should be strictly
construed to ensure compliance).  The Court also acknowledged “compelling interests [of the
candidate and the citizens of the district] warranting relief” in such cases.  Id. (citing LaRouche
v. Hannah, 822 S.W.2d 632, 633 (Tex. 1992)).  We also find instructive the difference in the
majority and dissenting opinions in the very recent case styled In re Bell, 45 Tex. Sup. Ct. J. 336,
2002 WL 87074 (January 22, 2002) (orig. proceeding).  The majority, noting that the Code
Construction Act applies to the Election Code, discussed “the objects ‘sought to be attained’ by
the Election Code, one such object being to prevent election fraud,” and whether an interpretation
produces a "just and reasonable result" in concluding that the omission of the city in the address
in a petition did not invalidate the signatures.  Id. at *2.  The dissent stood on the proposition that
statutory requirements concerning candidacy for political office are mandatory and are to be
strictly enforced.  Id. at *5 (citing Wallace, 707 S.W.2d at 877).
Analysis
      Relator maintains that he was not aware that a separate application is required.  He points to
the fact that no application form was included in the package of information sent to him by
Respondent when the filing of his Declaration of Intent was acknowledged.  He also relies on the
fact that Respondent was not personally present when he delivered the folder to Respondent’s
office and that no one immediately reviewed the contents of the folder to call the missing
application to his attention before he left Respondent’s office.  From these facts, he argues that
strict compliance with the deadline provisions in his case is not required to prevent fraud or
corruption, pointing out that he submitted a petition with more than the required number of
signatures of voters of Johnson County who want him to be on the ballot.  He further points to the
fact that he fully complied with all the requirements to become an independent candidate shortly
after the deadline and, because the delay in filing the application could not materially affect the
election, allowing him on the ballot would be a “just and reasonable result.”  Finally, he says that
the petition can be considered an application and he thus “substantially complied” with the
requirements of the Election Code.
      Relief cannot be grounded on the latter assertion because the Election Code specifically
provides that a deficiency in either an application or a petition cannot be remedied by the contents
of the other document.  Tex. Elec. Code Ann. § 141.032(c) (Vernon Supp. 2002).  Likewise,
Respondent’s argument that granting relief will effectively nullify the statutory deadlines was
rejected in Taylor, and we cannot base our decision on it.  Taylor, 930 S.W.2d at 583. 
Furthermore, issuance of a writ will not impair the election process.  See id. at 584.
      Because of the recent approach taken by our Supreme Court, we find persuasive Relator’s
argument that granting relief achieves a “just and reasonable result.”  Respondent’s failure to
include an application form with the information he furnished to Relator, although innocently
done, had the potential to mislead Relator into believing that the forms that were included were
all that were required.  Had Respondent or anyone in his office reviewed the contents of the folder
when it was delivered, the omission could have been corrected before the deadline while Relator
was still present.  See Painter v. Shaner, 667 S.W.2d 123, 124-25 (Tex. 1984).
      We are aware of our decision in In re Gibson, 960 S.W.2d at 421, where we held that the
candidate, not an election official, must ensure that an application complies with state law. 
However, Respondent’s failure to include the application form with the materials furnished to
Relator and his absence from his office at a critical time in the election process distinguish this
case from Gibson.
Conclusion
      We conditionally grant the writ of mandamus and direct Respondent to certify, prior to the
statutory deadline for such certifications, Relator as an Independent Candidate for the office of
County Judge of Johnson County, Texas, in the November General Election.  Tex. Elec. Code
Ann. § 142.010.  Because we are confident that Respondent will comply with our decision, the
writ will issue only if he fails to do so.
 
                                                                         BILL VANCE
                                                                         Justice

Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
      (Justice Gray dissenting)
Writ conditionally granted
Opinion delivered and filed August 7, 2002
Publish
[CV06]
