Atkinson v. Thomas
| Decision Date | 14 October 1966 |
| Docket Number | No. 11468,11468 |
| Citation | 407 S.W.2d 234 |
| Parties | Reginald ATKINSON, Appellant, v. Sam THOMAS, Appellee. . Austin |
| Court | Texas Court of Appeals |
Grindstaff & Grindstaff, Everett J. Grindstaff, Ballinger, for appellant.
Wilson, Logan, Lear & Massey, Ralph Logan, San Angelo, for appellee.
This is a statutory election contest, appellant Reginald Atkinson being the contestant and appellee Sam Thomas being the contestee. Both parties were candidates at the Democratic Primary Election held in Irion County on the 7th of May 1966 for the office of County Judge. The official result of the election was 285 to 284 in favor of appellee. The result of this contest in the court below was 283 to 277 in favor of appellee.
Appellant has challenged the validity of twenty one votes on the ground that the persons casting such votes had not resided in Irion County for the last six months prior to the election. Art. 5.02 Election Code, Vol. 9, Vernon's Ann.Tex.Civ.St. The first seven of these challenged votes were cast by single persons and they will be first discussed. The relevant facts regarding these voters will now be stated:
Maxine Van Court
Miss Van Court is a school teacher. She teaches outside of Irion County. She registers her automobile and has paid her poll tax in Irion County. Her father and mother live in Irion County and Miss Van Court spends her holidays and summers with them. Miss Van Court was reared in Irion County.
R. B. Mitchell
Mr. Mitchell was reared in Irion County from the time he was a small child. He owns property in Irion County, does his banking there and has voted there since 1920, and has never voted elsewhere. He considers Irion County his home.
Mr. Mitchell testified, in part, as follows:
'Q And where do you presently live, please sir?
A My home is in Irion County.
Q All right. And where do you live?
A I stay at present with my sister in San Angelo.
Q And at what address?
A 121 North Poe.
Q How long have you stayed with your sister at that address?
A Well, I'd say off and on for about four or five years.
Q And where did you stay previous to the time that you stayed there with your sister?
A Most of the time here in Irion County.
Q Do you own the home there at North Poe?
A No, sir.
Q And are you married, Mr. Mitchell?
A No, sir.
Q And at any time during the past four or five years have you stayed at any other place other than there in San Angelo with your sister?
A No, I haven't; other than there and here in Irion County.
Q Do you have a home or anything here in Irion County?
A I own property here, yes sir.
Q Do you have a house that you actually stay in at night?
A There's a place--there's several places here that I spend the night any time I am here.
Q But you don't actually have a house?
A I don't own a house. I own other property.
Q Well, is it rented out?
A No, sir.
Q And during the last year have you spent the majority of the nights in San Angelo at your sister's?
A I have spent the majority of the nights in San Angelo, yes sir.
Q And it is just occasionally that you come over here?
A I won't say occasionally; I am over here quite often.
Q How often would you say?
A I'd say an average of about twice or three times a week.
Q And is it for several hours a day when you come over here?
A Well, sometimes I spend the night here, maybe two or three nights; other times I'm just here for a few hours and go back.
Q Do you stay with some friends when you might spend overnight?
A Yes.
Q How long has it been since you had some livestock out here?
A I think about three years.
Q Why are you living in there with your sister at the present time?
A My sister, she is not exactly an invalid, but she needs someone to be with her, and I am in the same shape.
Q I believe you are a disabled veteran?
A That's right.
A That's right.'
Mr. Mitchell paid his poll tax for previous years in Irion County and did his banking business there. He thought Irion County should be his home.
Mr. McInteer is unmarried. He has voted in Irion County for the past 33 years, owns property there, considers Sherwood, in Irion County, his home and plans to live in Irion County when he retires. Mr. McInteer testified, in part, as follows:
'Q And where do you live?
A Well, I live at the ranch at Big Lake, about a couple of miles the other side of the county line.
A Yes, sir.
Q And do you work there on this ranch?
A Yes, sir.
Q Whose ranch is it?
A. Mrs. Vester Hughes.
Q And how long have you worked on this particular ranch?
A Oh, about 29 years.
Q Been there quite a while, haven't you?
A Two or three days anyway.
Q And have you lived on this same ranch during that 29 years?
A Yes.
Q And have you ever served on juries in this county?
A No, they called me one time, but told me I was a single man and didn't want me on the jury.
Q Have you served on Grand Juries here?
A No.'
Vester T. Hughes, Jr.
Mr. Hughes testified, in part, as follows:
'Q Where do you live, Mr. Hughes?
A My home and permanent residence is Mertzon; my business address, 4300 First National Bank Building, Dallas.
Q All right. And you are a lawyer?
A That's right.
Q How long have you been practicing in Dallas, Vester?
A 1955; 11 years, July.
Q And are you practicing by yourself or are you with some firm?
A I am a partner in the law firm of Jackson, Walker, Winstead, Cantrell & Miller.
Q And how long have you been a partner in this firm?
A 1958, October.
Q And did you practice with this firm between 1955 and '58?
A I did.
Q And where do you live in Dallas?
A My apartment presently is 4717 Bowser, Apartment No. 22.
Q And how long have you been living in this apartment?
A I think approximately eight years. I am getting ready to move.
Q Are you married?
A I am not.
Q You said that you claim Mertzon as your permanent home. How many times do you come here each year?
A That will depend on the year. Sometimes several; sometimes comparatively few.
Q Your mother lives here, does she not?
A Yes, sir.
Q Is most of the time to visit with her on holidays or special occasions?
A That's right. I have an interest other than that in the home. I am a remainderman in the will.
Q And is that in ranch property also?
A Not in Irion County.
A Reagan County.
Q Well, since June 1st of 1965 approximately how many times would you say that you have been back to Mertzon?
A Six or less; I really don't know. Some for several days' duration and some for a day or so.
Q What would be the longest period of time possibly that you have come back within the last year?
A A week or less.'
Mr. Hughes went through junior year in high school in Mertzon and finished high school, college and law school elsewhere, coming to Mertzon in all summer months. After returning from the Army, Mr. Hughes practiced law in Mertzon for a short time. He was registered with the Irion County Draft Board and was called to service by it. He registers his automobile in Irion County, files his income tax from there, receives mail there and was twice a delegate from Irion County to the State Democratic Convention and was an alternate delegate in 1956.
Mr. Hughes has no present intention of terminating his law practice in Dallas.
Mr. Hughes has some personal belongings in Mertzon and he considers Mrtzon his home and legal residence.
Mr. Thorp is single, is a heavy machine operator, moves about in his work, but he considers his parents' home in Mertzon to be his home.
Mr. Thorp testified, in part, as follows:
'Q And where do you presently live?
A I live in Albuquerque.
A Yes.
Q And how long have you lived in Albuquerque?
A Since about the 1st of February.
A Yes.
Q And where did you live prior to February?
A I was here in Mertzon.
Q And what were you doing in Mertzon?
A I was taking it easy, resting, loafing.
Q How long were you here?
A During the month of January.
Q During the month of January. Approximately how long during January?
A Nearly all month, lacked a few days of being a month.
Q And where were you staying?
A I was staying with my mother and father.
A I was at Eldorado the first of the year.
A Right, because this will be easier. Went to Midland, worked for the Ruby Construction Company; went to Sanderson when they had that washout and stayed down there about two weeks. I left Sanderson and went to Fort Worth; they sent me back to Alpine, stayed there two months and I lived in the hotel; and went back to Midland; from Midland I went back to Dallas, stayed there two weeks; back to Fort Worth two weeks.
Q So we can say during the year 1965 you were at several different places with your work?
A Yes, and whenever I was that distance I would always come back to Mertzon.
Q. Came back to visit the folks?
A That's right, and spend time.
Q Have you ever had a home or a house here in Irion County after you have been grown, other than living with your folks?
A No.
Q When you moved around these different places like you did in 1965, and also, say, like in Albuquerque, where did you usually stay?
A I rented a bedroom in a private home. Whenever I was in Sanderson, Forth Worth, Dallas, they paid my expenses, and I stayed in motels and hotels, and they even bought my cigarettes.
Q And at least for the year 1965 and up until May 7, 1966, taking into consideration all of the different places your employers have moved you around to, you haven't had an opportunity to acquire a legal residence anywhere except right here in Irion County, have you?
A That's right.
Q And were you born here?
A Yes, sir.'
Mr. Thorp has paid his poll tax rather regularly in Irion County. He gets mail in Irion County and has a bedroom and clothes in his parents' home. He owns no real estate in Irion County.
Mr. McInteer is single, a man 68 years of age, who has called Sherwood his home all of his life. He has a homestead and personal belongings in Irion County, stays...
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