¶1dissenting.
¶2I respectfully dissent.
¶3The Honorable Ben Martinez, relator, seeks a writ of mandamus to compel Robert Slagle, presiding officer of the State Democratic Executive Committee, to canvass the results of a “recount” in the Democratic primary run-off election. Relator also seeks to compel Slagle to reject the recount petition submitted by his opponent in the run-off.
¶4Relator is currently Judge of the 293rd Judicial District Court and was a candidate for re-election to that office in the recent Democratic primary. A run-off election was conducted between relator and challenger Rey Perez on June 7, 1986. The election returns indicated that Perez, the other candidate, had been nominated. Upon relator’s petition, Slagle ordered an initial recount. Recounts began in the three counties on June 20.
¶5It is clear there is a factual dispute as to when or even whether the Maverick County recount was completed. Relator contends the initial recount in all three counties was completed before 5:00 P.M., June 22. Perez and Slagle dispute this contention. Relator argues the recount was completed, and he won the nomination. Perez disputes that the recount was completed before he submitted a request for recount to Slagle’s agent at 5:00 P.M., June 22. On June 25, Slagle ordered a recount based on Perez’ petition.
¶6Named as respondents in this mandamus action along with Slagle are the presiding officers of the Democratic Executive Committees of Dimmit, Maverick and Zavala Counties.
¶7Relator argues that Slagle has breached his ministerial and non-discretionary duty to conduct the canvass of the run-off using the recount supervisors’ reports from the relator’s initial recount because this duty arose upon the completion of that recount. Relator also contends that Slagle must reject Perez’ recount petition because it was filed following the completion of the relator’s initial recount and is therefore not timely.
¶8Slagle, as executive officer of the Democratic Party, ruled that the Maverick County recount was not complete because it had not been conducted as required by law. Slagle maintains certain voted ballots were not counted by the judge, i.e. disqualified for some reason, however, no election officer set out the reason for not counting them, which is a violation of TEX.ELEC. CODE ANN. § 65.010(c) (Vernon 1986).
¶9Relator is correct in saying the Election Code does not contemplate or permit a second recount. Further recounting is allowed only in the case of a partial initial recount. Sections 211.002(3) and (4), 212.-052, 212.053. If more than one recount petition is approved, the recounts “shall be conducted at the same time.” Section 212.-005(c). This section does not contemplate a series of recounts conducted one after the other.
¶10The action relator seeks to compel is not a mandatory and ministerial duty to canvass an undisputedly complete set of returns as in Grant v. Ammerman, 437 S.W.2d 547 (Tex.1969). Rather, relator seeks to compel Slagle to canvass a certain *713set of returns which it is agreed is the subject of a factual dispute.
¶11It has been consistently held that the courts will not intervene to control the outcome of a canvass. Arberry v. Beavers, 6 Tex. 457, 471 (1851); Leslie v. Griffin, 25 S.W.2d 820, 821 (Tex.Comm’n App.1930, judgm’t adopted); Williams v. Sorrell, 71 S.W.2d 944, 946 (Tex.Civ.App.—San Antonio 1934, no writ). An election is essentially the exercise of political power and, during its progress, is not subject to judicial control. City of Austin v. Thompson, 147 Tex. 639, 219 S.W.2d 57, 59-60 (1949); City of Dallas v. Dallas Consolidated Electric Street Ry. Co., 105 Tex. 337, 148 S.W. 292, 294 (1912); Killam v. Webb County, 270 S.W.2d 628, 629 (Tex.Civ.App.—San Antonio 1954, n.r.e.).
The making and canvassing of the returns, by the appointed functionaries, constitute an integral part of the election, without which the election would be incomplete; and the courts are powerless to control the proceeding.
¶12Leslie v. Griffin, 25 S.W.2d at 821.
¶13Furthermore, it is elementary that the writ of mandamus will not issue if a fact question is raised by the pleadings and affidavits filed. Dick v. Kazen, 156 Tex. 122, 292 S.W.2d 913, 915 (1956); Palm v. Lesher, 489 S.W.2d 351, 355 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ.). In this case we have affidavits stating on the one hand that the recount was complete and, on the other hand, that it was not complete at the time Perez filed his petition. Relator recognized the existence of the disputed facts at the submission of this cause. Under all these circumstances, mandamus should not lie.