In re Cerda, No. 08-0028.

This was the petition for mandamus relief filed with much fanfare in the Texas Supreme Court last Friday by a group of firefighters in Fort Worth challenging whether Wendy Davis could be on the Democratic Primary ballot for the nomination to challenge State Senator Kim Brimer.

Later that same day, the Court requested a response to the mandamus petition that would have been due this Friday

But, this afternoon the Texas Supreme Court issued an order denying the petition for mandamus relief “without prejudice.”

The Court’s order merely cited Texas Rule of Appellate Procedure 52.3(e), which generally requires that a mandamus petition first be presented to the intermediate court of appeals (here, the Second Court of Appeals in Fort Worth):

(e) Statement of jurisdiction. The petition must state, without argument, the basis of the court’s jurisdiction. 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. If the petition is filed in the Supreme Court without first being presented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals.

The mandamus petition asserted that there was insufficient time before the March 4th primary to first seek relief from the court of appeals. The Court appears not to have been persuaded that this was a compelling reason, at least in this case.