Sears v. Bayoud

COOK, Justice,

dissenting.

I join in Justice Spears’ dissent because I do not believe that “at the time of election” modifies the ten-year requirement. Even if the majority were correct as to its construction of this provision, however, I would still dissent for other reasons. Accordingly, I write separately.

Today the majority deprives the people of Texas of a possible choice in the next election, and all for the sake of a ten-day gap. We should not allow such a technicality to work against the democratic process unless the constitution and the statutes make it painfully clear that there is no other way to proceed. In this case, there is another way, and it is mandated by the Election Code.

The Election Code states when a candidate is officially “elected.” That date is not the date of the general election, but the date the final canvassing authority for the election completes the canvass for the office or measure involved in the contest. TEX.ELEC.CODE ANN. § 221.005 (Vernon 1986). The final canvass is “the canvass in which the official results of an election are determined.” Id. at § 1.005(5). For the office of Justice of the Supreme Court, the final canvass is done by the governor. Id. at § 67.010 (Vernon Supp. 1990). The time for the canvass to be done by the governor is not earlier than the fifteenth or later than the thirtieth day after election day at the time set by the secretary of state. Id. at § 67.012 (Vernon Supp.1990).

In other words, the candidate is not elected until the votes are counted. No other rule makes sense. Anyone who has waitéd throughout a close election or witnessed a challenge to the count will agree. Anyone who has been elected as Justice of the Supreme Court knows that the Election Code’s election date is the operative one, for justices may not be sworn in until after that date.

Under the Code’s provisions, McCorkle is eligible. On the earliest possible date of canvassing, McCorkle will have been licensed ten years.

Contrary to the majority's statement, all parties did not agree that McCorkle will not have been eligible at the date of his election. At least one party timely and properly argued that McCorkle will achieve eligibility at the time of his election, as defined by the Election Code. I cannot think why the majority has given no credence to this argument. It is simple and correct on the law. It requires no inquiry into the constitution’s grammatical structure. It does not require that we ignore the cases cited by the majority. None of those cases presented a time gap so minor that it was erased by the Code. Moreover, the Election Code argument allows us to follow our decision in Brown v. Meyer, 787 S.W.2d 42 (1990), which we delivered only one week ago.

In Brown , another candidate disqualification case, we considered the purpose of the constitutional provision before us, noting that we are required to “consider the evil to be remedied and the good to be accomplished” by constitutional provisions. Id., (citing Markowsky v. Newman, 134 Tex. 440 , 136 S.W.2d 808, 813 (1940)). Following that rule of construction, we allowed J.E. “Buster” Brown to remain on the ballot. The purpose of the provision before us today is to ensure that those who serve on the Supreme Court are qualified. TEX. CONST. art. VIII, 2, interp. commentary (Vernon 1955). To say that the ten-day gap *259 makes Judge McCorkle unqualified is to subvert the purpose of the constitution and to ignore our decision of one week ago.

To declare McCorkle eligible both comports with the Election Code and achieves the fairest result for the people of this state, for the candidate, and for the democratic process. Accordingly, I would deny the relief requested and let the people decide.