#### JOHNSON v. BROWN, Secretary of State, et al.

No. A-1901.

Supreme Court of Texas.

Sept. 30, 1948.

James V. Allred and John H. Crooker, both of Houston, John D. Cofer, A. J. Wirtz and Everett L. Looney, all of Austin, B. Dudley Tarlton and L. E. Jones, both of Corpus Christi, and Raymond Buck, of Fort Worth, for Lyndon B. Johnson.

Price Daniel, Atty. Gen., and Joe R. Greenhill, Asst. Atty. Gen., for Paul H. Brown.

Dan Moody, Richard Critz and Clint Small, all of Austin, for Coke R. Stevenson.

PER CURIAM.

Relator seeks in this original proceeding leave to file petition and supplemental petition for writ of mandamus and prohibition. The relief sought is to compel the respondent, the Honorable Paul H. Brown, Secretary of State, forthwith to certify to the election boards of the various counties in Texas the relator’s name as Democratic nominee for the office of United States Senator from Texas, and directing the various election boards forthwith to print his name on the official ballot in their respective counties as the Democratic nominee for United States Senator, and prohibiting them from distributing any official ballot not containing the name of relator as such nominee. As against the respondent, the Honorable Coke R. Stevenson, the relief sought is that he be enjoined and prohibited from interfering in any manner with the Secretary of State or the election boards of the various counties in the performance of their official duties or from prosecuting any action in any court against the relator or against the other respondents herein interfering with or attempting to prevent the certification of the relator as such nominee and the printing of his name on the official ballot.

On a hearing on the motion for leave to file, relator through his counsel stated in open court that the respondent, the Honorable Paul H. Brown, Secretary of State, has duly certified relator’s name to the various election boards, and further that relator is unable to allege, and does not allege, that any election board will fail or refuse to cause his name to be printed on the official ballot in its county as the Democratic nominee for United States Senator, and further stated in open court that he does not question the right of the respondent, the Honorable Coke R. Stevenson, to prosecute further cases now pending in the Federal Courts. Counsel for respondent, the Honorable Coke R. Stevenson, stated in open court that such respondent has no intention of filing any suit in any state court seeking to interfere with the certification of relator’s name or the printing of relator’s name on the official ballot as nominee for United States *530Senator. Relator’s counsel stated in open court, in effect, that relator now has no cause of action for mandamus or prohibition against any respondent, but requested the Court not to rule on this motion at the present time, but to hold the matter under advisement so that, if conditions change or new or different facts appear entitling him to relief, relator may amend his pleadings and ask for relief at such time. This request must be denied. The case as presented to the Court by the pleadings and the statements of counsel is not one within our jurisdiction to grant any relief. Whether a different situation may arise later which will entitle relator to invoke the jurisdiction of this Court is a matter of speculation. ■ Necessarily our action in overruling this motion will be without prejudice to any rights of the relator to invoke the jurisdiction of this Court if facts arise entitling him to invoke its jurisdiction.

The motion is overruled.