ORIGINAL PROCEEDING WRIT OF MANDAMUS 351st District Court
Harris County, Texas
consists of Justices Zimmerer, Spain, and Hassan.
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
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.
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.
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rejecting relator's application was rescinded by letter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.
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 $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.
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.
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. 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 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