Alvarez v. Espinoza

• Decision Date: 19 November 1992
• Docket Number: No. 04-92-00440-CV,04-92-00440-CV
• Citation: 844 S.W.2d 238
• Parties: Adolfo ALVAREZ v. Pedro ESPINOZA.
• Court: Texas Court of Appeals

Page 238

844 S.W.2d 238

Adolfo ALVAREZ v. Pedro ESPINOZA.

No. 04-92-00440-CV.

Court of Appeals of Texas,

San Antonio.

Nov. 19, 1992.

Rehearing Denied Nov. 19, 1992.

Second Rehearing Denied Dec. 30, 1992.

Adolfo "Al" Alvarez, Law Offices of Adolfo Alvarez, Keith C. Livesay, Barron, Orendain, Malany & Flanagan, McAllen, Ramon Garcia, Law Office of Ramon Garcia, Edinburg, Sharon T. Hanko, Hanko & Triana, Austin, for appellant.

James W. Smith, Jr., Frio County Atty., Pearsall, Roy R. Barrera, Jr., Sharon S. Brown, Nicholas & Barrera, Inc., John E. Clark, Goode, Casseb & Jones, San Antonio, for appellee.

Before the court en banc.

ON APPELLANT'S MOTION FOR REHEARING

PER CURIAM.

Appellant's motion for rehearing is overruled. Our previous opinion of October 2, 1992, is replaced by the following.

Pedro Espinoza defeated Adolfo Alvarez by twenty-three votes in the Democratic primary run-off election for Frio County Commissioners Court, Precinct Three. Alvarez filed an election contest alleging that the election officials improperly allowed unqualified voters to vote, improperly rejected the ballots of qualified voters, and violated election code procedures. The trial court found that ten unqualified voters voted in the election, but that Espinoza still had a thirteen-vote margin and that the ten improper votes did not change the outcome. The court also held that any violations of the election code pertained to directory provisions and not to mandatory ones.

Alvarez's complaints in this court fall into four categories: (1) election officials violated various election code procedures; (2) several ballots submitted early by mail were improperly rejected; (3) nonresidents were allowed to vote; and (4) an election judge solicited votes for Espinoza. We agree that there were procedural violations: six nonresidents were allowed to vote, and three early voters by mail were improperly disqualified. But because Espinoza still has a four-vote margin and the procedural violations did not affect the outcome of the election, we affirm the judgment.

Initially Alvarez contends that the trial court's findings of fact and conclusions of law are "confusing, contradictory, and incomplete," which makes it impossible for him to present his appeal properly. Alvarez specified his complaints concerning each of the findings and conclusions and asked the court to make amended or additional findings. But he did not draft and submit proposed additional findings and conclusions.

After the court files original findings of fact and conclusions of law, any party may file "a request for specified additional or amended findings or conclusions." TEX.R.CIV.P. 298 (emphasis added). As the supreme court held long ago, "Rule 298 contemplates that the request for further additional or amended findings ... shall specify the further additional or amended findings that the party making the request desires the trial court to make and file." Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117, 119-20 (1944). A bare request is not sufficient; proposed findings must be submitted. See Heard v. City of Dallas, 456 S.W.2d 440, 445 (Tex.Civ.App.--Dallas 1970, writ ref'd n.r.e.).

Alvarez also complains that the findings are too general, but we conclude they are specific enough. They resolve the controlling issues and reveal the basis for the court's judgment. See Gutierrez v. Gutierrez, 791 S.W.2d 659, 667 (Tex.App.--San Antonio 1990, no writ). We note that Alvarez has been able to identify the factual and legal bases for the trial court's action and attack them in this court.

The trial court did not attempt to determine which candidate received any of the illegal ballots that were cast. Instead the court determined whether the number of illegal votes exceeded Espinoza's margin. The election code permits this approach, and neither party complains about it. See TEX.ELEC.CODE ANN. §§ 221.009-221.012 (Vernon 1986); Green v. Reyes, 836 S.W.2d 203, 208-11 (Tex.App.--Houston [14th Dist.] 1992, no writ).

I. PROCEDURAL IRREGULARITIES.

Alvarez first complains that several procedural irregularities permeated the election. The record shows that the officials did indeed fail to follow certain code provisions, and no one defends their failure to do so. But the code provisions at issue here are directory, and their violation does not require a new election.

The election code seeks to prevent error, fraud, mistake, and corruption, and to give effect to the will of the voters. It would frustrate these purposes for courts to set aside an election without proof that the violation affected the result. See Prado v. Johnson, 625 S.W.2d 368, 369-71 (Tex.Civ.App.--San Antonio 1981, writ dism'd); Little v. Alto Indep. Sch. Dist., 513 S.W.2d 886, 891 (Tex.Civ.App.--Tyler 1974, writ dism'd). To overturn an election, the contestant must show that the outcome, as shown by the final canvass, is not the true outcome either because illegal votes were counted, or because an election official prevented eligible voters from voting, failed to count legal votes, or engaged in other fraud or illegal conduct or made a mistake. TEX.ELEC.CODE ANN. § 221.003 (Vernon 1986). ¹ The contestant has the burden to make this showing by clear and convincing evidence. Reyes v. City of Laredo, 794 S.W.2d 846, 848 (Tex.App.--San Antonio 1990, no writ); Jordan v. Westbrook, 443 S.W.2d 616, 618 (Tex.Civ.App.--San Antonio 1969, no writ). With these principles in mind, we consider the effect of the officials' failure to strictly follow certain procedures.

A. Appointment and Qualifications of Election Officials.

Charles Winfield was appointed presiding judge of both the Early Voting Ballot Board and the Signature Verification Committee by the election clerk rather than the Democratic Party county chairman, as the code requires. See TEX.ELEC.CODE ANN. § 32.006 (Vernon 1986) & § 87.002 (Vernon Supp.1992). In addition, Winfield's appointment to the Signature Verification Committee was not made in writing, nor was it posted for the required ten days. See id. § 87.027(a), (g). Alvarez complains that as a result of these violations he was unable to object to the appointment of Winfield, who he says was biased, and that public confidence in the election process was undermined.

Espinoza does not defend these election code violations, and we can discern no excuse for them. Nevertheless, the provisions that were violated are directory in the sense that their violation does not justify an order setting aside the election. See Prado v. Johnson, 625 S.W.2d 368, 369-70 (Tex.App.--San Antonio 1981, writ dism'd); Little v. Alto Indep. Sch. Dist., 513 S.W.2d 886, 889 (Tex.Civ.App.--Tyler 1974, writ dism'd); Gayle v. Alexander, 75 S.W.2d 706, 708 (Tex.Civ.App.--Waco 1934, no writ). Alvarez has not shown that the violations affected the outcome of the election.

We hold that these procedural irregularities are not grounds for setting aside the election results.

We also reject the argument that the Signature Verification Committee was unqualified because none of the members had any handwriting training. The only eligibility requirement is that the committee member be a qualified voter of the area covered by the election. TEX.ELEC.CODE ANN. § 87.027(e) (Vernon Supp.1992).

B. Deputy Registrar's Registration of Voters.

Alvarez also challenges a voluntary deputy registrar's failure to receive registration applications in person and to review them for completeness in the applicants' presence, as the law requires. See TEX.ELEC.CODE ANN. §§ 13.038, 13.039 (Vernon 1986). Alvarez argues that the registrar's conduct created a significant possibility of fraud. The registrar registered some 106 voters; sixty-eight of these actually voted.

The sixty-eight voters filled out voter registration forms and submitted them to the proper authorities in good faith, assuming that they would thereby be properly registered to vote. The authorities accepted the forms and included the sixty-eight in the lists of registered voters. While we do not condone the registrar's apparent failure to review the applications for completeness in the voters' presence, there is no suggestion that any of the applications were in fact incomplete. The courts should not disfranchise the sixty-eight voters because an official failed to follow the strict letter of the code. We consider this an instance in which a sanction for the sins of the registration official should not visited upon the voter.

II. EARLY VOTING.

Alvarez maintains that the board did not follow the election code in challenging the eligibility of three voters who mailed in early ballots, and that it erroneously rejected six mailed-in ballots whose signatures did not match the applications.

A. Procedure for Challenging Eligibility of Early Voters by Mail.

Under the election code, any qualified voter may vote early in person, but only certain persons (for example, the disabled, the elderly, those who will be absent from the county) may vote early by mail. See TEX.ELEC.CODE ANN. §§ 82.001-.006 (Vernon Supp.1992). The board rejected three ballots based upon information that the reasons given for voting absentee by mail were incorrect: challengers or board members had personal knowledge that statements of age and disability, which were the reasons for voting early by mail, were untrue.

The code mandates a procedure for challenging a voter's eligibility to vote early by mail. Id. §§ 88.001-.004. When the person challenging the ballot is not a member of the board, the challenge must be in writing. Id. § 88.002. A challenge to an early mail-in ballot "shall be determined only on the basis of information in governmental records unless the voter appears in person to respond to the challenge." Id. § 88.003(c). The code defines "governmental record" as a document "filed, prepared, or preserved under this code" or "belonging to, received by, or kept by the state, a political subdivision, or any branch or agency of the...