# Painter v. Shaner

> Court of Appeals of Texas · March 20, 1984 · 667 S.W.2d 356

URL: https://www.frixlaw.com/law-library/cases/5061291

## Case

- **Full name:** Gary Wayne PAINTER, Relator v. William T. SHANER and The Midland County Republican Executive Committee
- **Court:** Court of Appeals of Texas
- **Decided:** March 20, 1984
- **Citations:** 667 S.W.2d 356; 1984 Tex. App. LEXIS 5243
- **Precedential status:** Published
- **Opinion:** Dissent by Preslar
- **Judges:** Ward, Preslar
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5061291

## Opinion text

STEPHEN F. PRESLAR, Chief Justice,
dissenting.
I respectfully dissent. The Relator has made a proper application and should not be denied a place on the ballot. A writ of mandamus lies to compel party officials to accept a proper application of the candidate and to place his name on the ballot. Baker v. Porter, 160 Tex. 488 , 333 S.W.2d 594 (1960); Ferris v. Carlson, 158 Tex. 546 , 314 S.W.2d 577 (1958); Cantrell v. Carl *359 son, 158 Tex. 528 , 314 S.W.2d 286 (1958); McClain v. Betts, 95 S.W.2d 1311 (Tex.Civ.App.—Beaumont 1936, no writ); Friberg v. Scurry, 33 S.W.2d 762 (Tex.Civ.App.—Fort Worth 1930, dism’d w.o.j.); Clancy v. Clough, 30 S.W.2d 569 (Tex.Civ.App.—Gal-veston, 1928, no writ); Yapor v. McConnell, 597 S.W.2d 555 (Tex.Civ.App.—El Paso 1980, no writ); Parker v. Brown, 425 S.W.2d 379 (Tex.Civ.App.—Tyler 1968, no writ); Ramsey v. Marlowe, 376 S.W.2d 438 (Tex.Civ.App.—Tyler 1964, no writ); Ferguson v. Marlowe, 376 S.W.2d 360 (Tex.Civ.App.—Tyler 1964, no writ); Roy v. Drake, 292 S.W.2d 848 (Tex.Civ.App.—Dallas 1956, no writ).
No court in Texas has ever held that the right of a citizen to be a candidate can be denied by the official responsible for taking the application absenting himself or by the committee responsible not providing someone to accept applications. This case differs from those relied on by the majority in that controlling fact; that is, the absence of anyone to receive an application for a place on the ballot. That it happened in this case was inadvertent, and the official was willing to accept the application except for being advised by the Secretary of State that he could not. The rule we make today will permit other officials in other times to keep candidates off the ballot for other reasons good or bad. Simple absence is now provided as a device for much evil which we have declared this day to be the law. It is contrary to the letter and spirit of our elections laws. It is not necessary to open the door to such possible abuse of the political process. Under the circumstances here, where the county chairman was not present, I would hold that his acceptance over the phone of the application conditioned on its delivery was sufficient. That the acceptance occurred prior to the 6:00 p.m. deadline; or the failure to provide a person to accept, estops any denial for late filing. The cases of Brown v. Walker and Newsom v. Adams cited by the majority do not support the proposition they are cited for, “the voluntary absence of the chairman,” because those cases do not involve the voluntary absence of a chairman. In those cases, the candidate did something wrong. In Brown , he mailed the filing fee by regular mail instead of registered mail and it arrived late. In Newsom, the application was filed with the wrong party, a committeeman instead of the county chairman. Newsom would be controlling of the attempt by the county chairman in this case to appoint Builta his agent, but neither case is analogous to or controlling of the situation before us. I would grant the writ of mandamus.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5061291. Public record. Not legal advice.