Court of Appeals of Texas, Fifth District, Dallas
IN RE CHRISTOPHER D. MARTIN, Relator
Original Proceeding from Van Zandt County  , Texas
Justices Francis, Evans, and Schenck Opinion by Justice Evans
the Court is relator's petition for writ of mandamus in
which he seeks a writ ordering the Van Zandt County
Republican Party Chair to declare real party in interest Tina
Marie High Brumbelow ineligible to be a candidate in the May
22, 2018 run-off election for the office of judge of the
294th Judicial District Court of Van Zandt County. Relator,
also a candidate for the same position, contends that public
documents conclusively establish that Brumbelow is ineligible
because she was not registered to vote in the district for
six months prior to the election filing deadline as required
by sections 141.001(5) and 141.001(6) of the election code.
See Tex. Elec. Code § 141.001. For the reasons
stated below, we deny the petition.
Court has jurisdiction to consider a request for mandamus
relief and to "compel the performance of any duty
imposed by law in connection with the holding of an election
... regardless of whether the person responsible for
performing the duty is a public officer." Tex. Elec.
Code Ann. § 273.061; see also Tex. Gov't
Code Ann. § 22.221 ("Each court of appeals may
issue a writ of mandamus and all other writs necessary to
enforce the jurisdiction of the court."). This standard
is in line with the traditional use of the writ of mandamus
to compel the performance of a ministerial act or duty.
Wentworth v. Meyer, 837 S.W.2d 148, 151 (Tex.
App.-San Antonio 1992, orig. proceeding). Consequently, we
have no authority to resolve factual disputes. In re
Link, 45 S.W.3d 149, 152 (Tex. App.-Tyler 2000, orig.
proceeding). Further, neither the election code nor our
general mandamus authority permits us to simply declare a
candidate ineligible. In re Cullar, 320 S.W.3d 560,
565 (Tex. App.-Dallas 2010, orig. proceeding). Instead, we
may issue mandamus only when the record shows that the
respondent has failed to perform a "duty imposed by
law." Elec. Code § 273.061; see also In re
Armendariz, 245 S.W.3d 92, 94 (Tex. App.-El Paso 2008,
orig. proceeding) (noting that mandamus relief is appropriate
when the record establishes "a clear abuse of discretion
or the violation of a duty imposed by law").
Additionally, the relator must show that a demand for the
performance was made and denied. See Axelson, Inc. v.
McIlhany, 798 S.W.2d 550, 556 (Tex. 1990) (noting that,
as a general rule, mandamus is not available to compel an
action that has not first been demanded and refused).
mandamus is an extraordinary remedy, not issued as a matter
of right, but at the discretion of the court. Rivercenter
Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993)
(orig. proceeding). Although mandamus is not an equitable
remedy, its issuance is largely controlled by equitable
principles. Id. One such principle is that
"equity aids the diligent and not those who slumber on
their rights." Id. Thus, delaying the filing of
a petition for mandamus relief may waive the right to
mandamus unless the relator can justify the delay. In re
Int'l Profit Assocs., Inc., 274 S.W.3d 672, 676
(Tex. 2009) (orig. proceeding). "Two essential elements
of laches are (1) unreasonable delay by one having legal or
equitable rights in asserting them; and (2) a good faith
change of position by another to his detriment because of the
delay." Rogers v. Ricane Enters., 772 S.W.2d
76, 80 (Tex. 1989).
relator challenged Brumbelow's eligibility almost two
months after the primary election took place in which
Brumbelow accumulated sufficient votes to be eligible for the
runoff election. Relator filed this original proceeding less
than a week before early voting by appearance begins in the
run-off election. Relator has not explained if he
investigated Brumbelow's eligibility before the primary
and, if not, why he did not do so. He also has not
sufficiently explained why he did not challenge
Brumbelow's eligibility sooner. The timing of
relator's complaint and this original proceeding have
effectively deprived Brumbelow of any opportunity to
meaningfully respond, to marshal responsive facts and law,
and to obtain counsel at a time in which she could
meaningfully defend his allegations before the early voting
deadline. Under these circumstances, we conclude that
relator's complaint is barred by laches.
conclude that the record does not conclusively establish that
Brumbelow is ineligible to be a candidate for the office
sought. Section 145.003 of the election code provides the
procedures for obtaining a declaration that a candidate is
ineligible for office. Tex. Elec. Code Ann. § 145.003. A
candidate may be declared ineligible only if: (1) the
information on the candidate's application for a place on
the ballot indicates that the candidate is ineligible for
office; or (2) facts indicating that the candidate is
ineligible are conclusively established by another public
record. Id. § 145.003(f). When the appropriate
authority is presented with an application for a place on
that ballot or another public record containing information
pertinent to a candidate's eligibility, the appropriate
authority shall promptly review the record. Id.
§ 145.003(g). If the record conclusively establishes
that a candidate is ineligible, the authority must declare
the candidate ineligible. Id. An authority's
obligation to declare a candidate ineligible when required to
do so under section 145.003 is a "duty imposed by
law" and is subject to mandamus relief. See id.
§ 273.061; see also In re Sanchez, 366 S.W.3d
255, 257 (Tex. App.-San Antonio 2012, orig. proceeding)
(explaining that party chairman had duty to declare candidate
ineligible if public record established that candidate was
ineligible and, because he did not, mandamus relief would be
relator contends that public records conclusively demonstrate
Brumbelow's ineligibility, and he has presented these
records to the Court with his petition for writ of mandamus.
He relies on certified computer printouts of what purport to
be documentation showing that Brumbelow's voter
registration was transferred from Smith County to Van Zandt
County on November 29, 2017, and Smith County voting records
showing Brumbelow last voted in a Smith County election on
November 8, 2016. Relator has not shown that the registration
records are conclusive or even reliable to the point that
would compel the Chair to remove Brumbelow from the ballot.
Further, none of the records submitted by relator establish
that Brumbelow was not registered to vote in Van Zandt County
prior to the November 29, 2017 transfer. Under this record,
we conclude relator has not conclusively established
we deny relator's petition for writ of mandamus. Due to
the time sensitive nature of the issues presented, the Court
will not entertain motions for rehearing.
 Although originally filed in the
Twelfth District Court of Appeals and docketed as case number
12-18-00115-CV, this original proceeding was transferred to
this Court pursuant to Tex. Gov't Code § 73.001.
See Tex. Sup. Ct. ...