IN RE JIM SHARP (dissenting)

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No. 06-0061

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In re Jim Sharp, Relator

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On Petition for Writ of Mandamus

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Justice Johnson, joined by Justice Wainwright, dissenting.

I respectfully dissent from the Court s decision to grant mandamus relief on two grounds.

First, relator Sharp did not first seek relief in the court of appeals as Texas Rule of Appellate Procedure 52.3(e) requires. See Tex. R. App. P. 52.3(e) ( If the Supreme Court and the court of appeals have concurrent jurisdiction, the petition must be presented first to the court of appeals unless there is a compelling reason not to do so. ). He asserts two compelling reasons for not doing so: (1) there is a limited time available to resolve this matter, and (2) the relief sought potentially affects a sitting justice of, and candidate for, the First Court of Appeals, Place 9, which is the office for which Sharp is seeking to become a candidate on the Democratic primary ballot. As to the first compelling reason, a lack of time, relator neither cites authority for his position that the time constraints involved are compelling, nor offers explanation why time is so pressing now, when his petition in this Court was not filed for fourteen days after the date of the Democratic party chair s letter notifying him that he would not be certified as a candidate. As to the second compelling reason, he does not (1) cite authority, (2) explain his concern as to a sitting justice of the First Court of Appeals when he does not allege or present facts showing that venue for this mandamus proceeding would be proper in the First Court of Appeals, (3) explain why, even if venue would be proper in the First Court of Appeals, his petition for mandamus could not have been filed in the Fourteenth Court of Appeals which has coterminous geographical jurisdiction with the First Court, or (4) explain why the rules of procedure governing recusal of justices would not be sufficient protection from any potential difficulties he speculates might occur even if the petition had been filed in the First Court. See Tex. R. App. P. 16.3, 17; Tex. R. Civ. P. 18b.

Second, I would decline relief because Sharp s petition presents matters which should first be brought in a trial court where factual issues and matters bearing on his entitlement to relief could be explored by all parties, and, to the extent necessary, conflicting evidence reconciled. See In re Gamble, 71 S.W.3d 313, 318 (Tex. 2002). Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles such as consideration of the diligence exercised by a party seeking relief. See Rivercenter Ass n v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993). And, mandamus is inappropriate when factual issues exist. See In re Gamble, 71 S.W.3d at 318; Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990). Sharp seeks relief although he does not explain the delay between the date of the letter by which he was notified that he would not be certified as a candidate and the filing of his petition for mandamus. Nor, although he claims there are no factual conflicts or inquiries that bear on his request for relief, does he show the absence of such factual issues and matters. For example, aside from the unexplained delay in filing his petition for relief, Sharp asserts that he seeks to be a candidate for Justice of the First Court of Appeals, Place 9, while the notification that he would not be certified as a candidate references Justice of the Fourth Court of Appeals, Place 1. Presumably, although the discrepancy is not addressed by Sharp, the discrepancy in the notification letter is merely a clerical error. But, this limited mandamus record and petition do not address the matter.

Considering the foregoing, I would deny mandamus relief.

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Phil Johnson

Justice

OPINION DELIVERED: January 27, 2006