Opinion
No. 10-06-00402-CR
Opinion Delivered and Filed: January 10, 2007.
The petition for writ of mandamus is denied.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
Original Proceeding
MEMORANDUM OPINION
(Chief Justice Gray dissents without a separate opinion, but notes that a candidate is elected by virtue of having received the majority of the votes cast, not by virtue of the prima facie evidence thereof in the form of a certificate of election delivered by the canvassing authority. See TEX. ELEC. CODE ANN. § 67.016(a),(c), (e) (Vernon 2003); Gonzalez v. Duran, 250 S.W.2d 322, 324 (Tex.Civ.App.-San Antonio 1952, writ ref'd) (quoting DeShazo v. Davis, 162 S.E. 320, 321 (Va. 1932) (orig. proceeding)); Wells v. Comm'rs' Court, 195 S.W. 608, 609 (Tex.Civ.App.-El Paso 1917, writ ref'd); Dean v. State ex rel. Bailey, 88 Tex. 290, 295, 30 S.W. 1047, 1048 (1895) (certified question); Ewing v. Duncan, 81 Tex. 230, 236, 16 S.W. 1000, 1002 (1891); Beeler v. Loock, 135 S.W.2d 644, 647 (Tex.Civ.App.-Galveston 1939, writ dism'd w.o.j.) (interpreting 1925 Tex. Rev. Civ. Stat. art. 3032 (current version at TEX. ELEC. CODE ANN. § 67.016(e))) ("It is not the certificate that confers the right on the candidate to the office, but the highest vote.").)
Petition denied