Constable candidate files new eligibility appeal

{child_byline}By Zak Wellerman

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Although Smith County Precinct 1 constable candidate Willie Mims remains on the primary election ballot, his eligibility for becoming the general Democratic candidate will likely not be determined until after the March 3 election.

Whether Mims will be allowed to continue his bid to be elected constable is now in the hands of the courts.

Mims, who was told he couldn’t be the general Democratic candidate by a judge in district court, filed an appeal to the 12th Court of Appeals, on Thursday.

The appeals court has not yet issued an opinion concerning Mims’ appeal to the district court order, according to the court records.

Mims’ appeal to a higher court is the latest move in a contentious race that has been filled with accusations of wrongdoing and questions swirling around whether Mims is in fact a Democratic Party candidate.

Bobby Garmon, the current office holder and Mims’ primary challenger, filed a lawsuit on Jan. 9 claiming that Mims did not have the required number of signatures on the petition he used to file for candidacy.

Retired Judge Jim Parsons who heard the case on Jan. 21 agreed and issued a temporary injunction. The court order states that the Smith County Democratic Party cannot certify Mims’ as a candidate in the November General Election ballot if he were to win the majority of votes required in the primary until the court reaches a final judgment.

In the event Mims’ wins the primary election, a final trial on the merits of the case, including Garmon’s request for a permanent injunction, has been set for March 12 in 241st District Court, according to court documents.

Mims’ attorney has said that the initial judge’s ruling violated the law because it was made after ballots with Mims name on it had already been mailed.

The Texas Election Code stipulates that once ballots have been mailed a judge cannot deem a candidate to be ineligible. Ballots for military and overseas voters were mailed before the hearing took place.

Joseph B. Kulhavy, a former staff attorney with the Elections Division of the Texas Secretary of State, told the Tyler Morning Telegraph that makes the judge’s ruling moot.

Kulhavy said “there is no reason, based on the facts reported, to consider Mr. Mims an ineligible candidate.”

He added that there is not an indication of Mims being ineligible for the nomination or office.

An error on a petition regarding form, content or procedure is not related to a candidate’s eligibility according to the Texas Election Coder regarding eligibility for office.

Kulhavy also runs the Texas Election Law Blog, where he discusses election law.

“An error on a petition as to form, content, or procedure is independent of and unrelated to the candidate’s eligibility for nomination,” Kulhavy said. “In this regard, the state statutes are consistent with the position of the common law, strongly held for centuries. There is a presumption in favor of upholding a candidate’s eligibility for office, notwithstanding various errors or mistakes made in the application process.”

The Texas Democratic Party said in an emailed statement said that Parsons’ ruling was made after the deadline had passed for a judge to rule on an eligibility for office dispute.

“This matter is being appealed by the affected party,” the statement read. “We await a ruling from the court.”

While the Texas Democratic Party said in an emailed statement it does not interpret lawsuits, the party said it will “do whatever the appellate court rules as the action to take.”

In the appeal, Mims’ lawyer, Wiliam T. Hughey, claims that the hearing involving Judge Parsons violated the Texas Election Code, which requires that a challenge to be on the ballot cannot be made after any ballot for early voting is mailed, according to the notice of appeal.

Hughey writes in the appeal that “judicial power cannot be invoked to interfere with the election process once it has begun.”

A challenge cannot be made after the 50th day before the election, according to Texas Election Code. The code does not state that a judge cannot make a ruling after this date, Garmon’s attorney, Dallas Tharpe said.

An amended petition, which removed the request of getting Mims’ name off the ballot, was resubmitted days before the Jan. 21 and was received by the court ahead of a hearing, Tharpe said.

Hughey states in the appeal the trial court order is an “abuse of discretion” since Garmon filed the case with the Supreme Court and that court denied hearing the case.

Hughey claims the court’s denial makes the challenge “moot.”

Mims, 51, a Precinct 1 constable deputy, potentially could still get the most votes because his name is on the ballot.

Curtis Traylor Harris, 32, a Texas Juvenile Justice Department corrections officer, is also seeking the constable position in the Democratic primary. There are no Republicans running for the office.

Garmon, 61, was appointed as interim Precinct 1 constable in 2017 after the previous constable, Henry Phillip Jackson, was sentenced to six months in federal prison for income tax evasion.

{child_related_content}{child_related_content_item}{child_related_content_style}Just The Facts{/child_related_content_style}{child_related_content_title}Timeline {/child_related_content_title}{child_related_content_content}

Dec. 9- Smith County Democratic Party Chair Michael Tolbert accepts Willie Mims’ application to be on the ballot for Smith County Precinct 1 Constable Democratic primary

Dec. 19 — Tolbert receives fellow candidate and current constable officeholder Bobby Garmon’s challenge against Mims’ application regarding a lack of valid petition signatures

Dec. 23- Tolbert sends email to Mims notifying him of issues concerning his lack of signatures

Jan. 7- Tolbert sends a second email regarding the number of the signatures. Mims calls Tolbert with concerns about the challenge, and then calls the state party, who tell him it’s too llate for his petition to be rejected.

Jan. 9- Garmon files lawsuit against Tolbert claiming that Mims did not have the required number of signatures on the petition he used to file for candidacy. The lawsuit asked for an injunction to stop Mims from being the general Democratic candidate.

Jan. 15- Garmon requests Texas Supreme Court to rule on lawsuit.

Jan. 17- Texas Supreme Court chooses not to hear the case.

Jan. 21- After a court hearing, visiting retired Judge Jim Parsons issues a temporary injunction, which would stop the Smith County Democratic Party from placing Mims’ name on the November ballot.

Jan. 29- Mims files a counter petition to request that the injunction be dismissed.

Feb. 13- Mims files appeal with the 12th Court of Appeals, which is an appeals court with intermediate jurisdiction over district and county courts, in hopes from reversing Parsons’ ruling

Feb. 18 to 28- Early voting for the primary election

March 3- Democratic primary election

March 12- A final trial on the merits of the case, including Garmon’s request for a permanent injunction, has been set for March 12 in 241st District Court.

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Reporter

I came to the Tyler Morning Telegraph in September 2019. I report on crime, courts, breaking news and various events in Tyler and East Texas.

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