Concurring Opinion Filed February 23, 2021

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00106-CV

IN RE DAVID PALMER, Relator

Original Proceeding from the City of Irving

Dallas County, Texas 

CONCURRING OPINION

Opinion by Justice Schenck

I join my colleagues in the result in this case, though I may do so on somewhat 

narrower grounds. I write separately to express my concern that prior panel 

precedent, In re Cullar, which controls our treatment of writ applications in election 

matters and reflects our practices in writ matters generally, applied a standard that is 

too restrictive. 320 S.W.3d 560 (Tex. App.—Dallas 2010, orig. proceeding).

In Cullar, this Court held that the failure to include an exhibit in the appendix 

accompanying a petition for writ of mandamus demonstrating that a request to 

remove a candidate from the election ballot had been made to and refused by the 

election official was fatal to the petition itself. Id. at 568. Thus, where the fact of 

the request and denial is referenced in the petition, but not proved by the mandamus 
–2–

record, we are obliged to deny the petition, rather than treating the omission as a 

defect that may be cured. Cf. TEX.R. APP. P. 44.3 (governing defects related to “an 

appeal”). Our mandamus jurisprudence treats the absence of proof of the request 

and refusal as necessary to the processing of the petition, rather than a matter of form 

that might be rectified by a telephone call and supplementation of the record, for 

example. 

Putting aside any question over the application of Rule 44.3 in the mandamus 

context, I note that Rule 52.3(k) speaks explicitly to the contents of the appendix, 

separating what is “necessary” from what is “optional” in the process. TEX. R. APP.

P. 52.3(k). I do not see our practice in Cullar, insofar as it relates to urgent election 

matters (or any other cases), listed among those matters that are “necessary.” As I 

have expressed concern elsewhere over our election jurisprudence lacking both the 

alacrity and the force to permit us to acquit ourselves of the serious task that lies 

before the state courts, particularly after the Supreme Court’s decision in Shelby 

County, Alabama v. Holder, 570 U.S. 529 (2013), I will not repeat them here.1 As 

this panel is bound by Cullar, I concur in the result.

 

1

In re Bishop, No. 05-18-01333-CV, 2020 WL 1074583, at *11 (Tex. App.—Dallas March 6, 2020, 

orig. proceeding) (Schenck, J., concurring) (expressing concern that revision of election primary date 

combined with under-developed mootness principles has resulted in Election Code being substantively 

unenforced by Texas appellate courts for several decades); Bickham v. Dallas Cty., 612 S.W.3d 663, 677–

79 (Tex. App.—Dallas 2020, pet. filed) (Schenck, J., dissenting) (expressing concern over holding that poll 

watchers lack standing to complain of obstruction of ability to observe).
–3–

Separately, I understand the petition here to be subject to a second, more 

substantive deficiency that may be said to compel denial—that the decision whether 

to include or exclude candidate Webb from the ballot is discretionary, rather than 

ministerial. As I understand the challenge here, it relates to the fact of Webb’s prior 

service as a member of the city council and by the dates of that service. As both of 

these matters are addressed by the governing substantive law and, insofar as any 

court proceedings are concerned, would be subject to resolution by judicial notice of 

the public record of the service and the calendar, I do not believe that a local election 

official would be empowered as a matter of discretion to ignore either. Willis v. 

Potts, 377 S.W.2d 622 (Tex. 1964) (granting mandamus based on allegations in 

petition and operative constitutional and statutory provisions). The conduct of our 

elections in accordance with the rules laid down in advance of their happening is not 

a matter for local discretion, as I understand it, and our courts should be open and 

available on a timely basis to assure compliance. See Bickham v. Dallas Cty., 612 

S.W.3d 663, 676 (Tex. App.—Dallas 2020, pet. filed) (Schenck, J., dissenting).

210106CF.P05

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE