Fuentes v. Howard

• Decision Date: 27 December 1967
• Docket Number: No. 5913,5913
• Citation: 423 S.W.2d 420
• Parties: David FUENTES, Appellant, v. Frances E. HOWARD, Appellee. . El Paso
• Court: Texas Court of Appeals

Page 420

423 S.W.2d 420

David FUENTES, Appellant, v. Frances E. HOWARD, Appellee.

No. 5913.

Court of Civil Appeals of Texas El Paso.

Dec. 27, 1967.

Rehearing Denied Jan. 24, 1968.

Charles E. McDonald, Alpine, George W. Finger, El Paso, for appellant.

Shafer, Gilliland, Davis, Bunton & McCollum and Lucius D. Bunton, Odessa, for appellee.

OPINION

PRESLAR, Justice.

This is an election contest for the office of County Commissioner, Precinct No. 4, Presidio County, Texas, arising out of the election held November 8, 1966. The election returns and poll and canvass for said office as made by the election and county officials show that David Fuentes received 60 votes and Frances E. Howard received 44 votes as a write-in candidate, and by canvass of the Commissioners' Court of Presidio County, Texas, David Fuentes was declared elected. In an election contest, for which this appeal is taken, the trial court decreed the final tally and poll of legal votes to be 58 votes for Frances E. Howard; 55 votes for David Fuentes; and that Frances E. Howard was duly elected. We reverse, and render judgment that David Fuentes is the duly elected County Commissioner for Precinct No. 4, Presidio County, Texas.

The votes of Ramon Muniz, Cruz T. Muniz, Edubyin Muniz, Ramon Muniz, Jr., Bertha Muniz, Feliciano Muniz, Ricardo Muniz, Jose E. Mendoza, Ramon Mendoza, and Flora Zertuche were counted for appellee, Frances E. Howard, and appellant contends such votes should not have been counted because each of the voters received aid in that the notary public who took their acknowledgments to their absentee ballots struck out the name of appellant on the ballots and wrote in the name of appellee. Except for the vote of Flora Zertuche, which will be discussed later, the validity of such votes depends on whether Article 5.05, subdivision 15, Vernon's Annotated Texas Election Code, is directory or mandatory.

Subdivision 15, Article 5.05, in the parts here pertinent, provides:

'No assistance shall be given a voter in marking his absentee ballot except where the voter is unable to prepare the same himself because of some bodily infirmity, such as renders him physically unable to write or to see. * * * Where any assistance is rendered in marking an absentee ballot other than as allowed in this subdivision, the ballot shall not be counted but shall be void for all purposes.'

In its judgment the trial court found that such votes were legal votes, but expressly found 'that each of said voters received assistance in voting their absentee ballots.' Excepting Flora Zertuche, there is no contention that any of such voters suffered any bodily infirmity, and there is no dispute as to the court's finding that each received assistance in preparing his ballot. We are of the opinion that the article is mandatory and that these nine ballots should not have been counted for appellee. In providing this manner of casting absentee ballots, the legislature used mandatory language--'the ballot shall not be counted but shall be void'--and the courts have held that the provisions as to absentee balloting prescribed by the legislature, as amended in 1959, are mandatory and not directory. Farrell v. Jordan, 338 S.W.2d 269 (Tex . Civ.App., Houston 1960; wr. dism.); Brandon v. Quisenberry, 361 S.W .2d 616 (Tex.Civ.App., Amarillo 1962; n.w.h.); McGee v. Grissom, 360 S.W.2d 893 (Tex.Civ.App., Ft. Worth 1962; n.w.h.); Guerra v. Ramirez, 351 S.W.2d 272 (Tex.Civ.App., San Antonio 1961; wr. dism.); Atkinson v. Thomas, 407 S.W.2d 243 (Tex.Civ.App., Austin 1966; n.w.h .). Appellee cites cases holding that the election laws should be given a liberal construction to the end that they be held directory and not mandatory and the voting privilege not be lost by technicalities. With that there can be no quarrel, but the function of the courts is to interpret and apply the law as written by the legislature, and this provision of the law leaves no room for interpretation. We are unable to construe words such as 'shall not' be counted, and 'shall be void' as directory. The reported cases show that many of the abuses and misuse of the election process occur in the system of absentee voting, where the vote is cast somewhat in secrecy away from the public polling place on election day. The legislature has spelled out the manner in which this privilege of voting by mail and at a time and place other than the public polling place on election day shall be exercised. The general rule is that the performance of duties placed upon the election officials is directory unless made mandatory by statute, while those placed upon the voters are mandatory. Davis v. Walcott, Tex.Civ.App., 96 S.W.2d 817 (dism.); City of Roma v. Gonzalez, Tex.Civ.App., 397 S.W.2d 943 (ref., n.r.e.). By the above subdivision 15 the legislature has prescribed that the absentee voter who receives aid, however innocently, shall not have his ballot counted. Thus the task of proving fraud in the far-flung absentee voting is not cast upon one who contests absentee votes in which the voter received unauthorized assistance. The obligation of the contestant is to establish such assistance, and as to the votes before us the trial court found there was in fact assistance, and such finding is not challenged. Appellee cites Fields v. Cotten, Tex.Civ.App., 383 S.W.2d 84 (n.w.h.) and Mitchell v. Jones, Tex.Civ.App., 361 S.W.2d 224 (n.w.h.), for the proposition that subdivision 15 of Article 5.05 is directory and not mandatory. We cannot agree that such is the specific holding in either case, and we would adhere to the more definite holdings, with writ dismissed, of the cases of Farrell v. Jordan (supra) and Guerra v. Ramirez (supra), and the latest case specifically stating that the subdivision is mandatory, Atkinson v. Thomas (supra, no writ). Mitchell v. Jones recognizes the mandatory feature of the subdivision, for the opinion states:

'The first point challenges the respective ballots of a group of voters who received assistance is marking their ballots on the basis that the person giving assistance was not sworn, and did not take an oath in accordance with that part of Art. 8.13 pertaining to persons rendering assistance to voters in the preparation of their ballot. Art. 5.05, Sec. 15 and Art. 8.13 contain provisions identical in meaning, stating that when assistance is rendered the voter in preparing a ballot other than the assistance allowed by statute the ballot shall be void. It must be assumed that the legislature intended what the statute said; that is, that the vote cast shall be void if the voter receives assistance in preparing a ballot other than the assistance allowed by law. The facts show that no voter received assistance except in marking a ballot; such assistance is the very thing the statute authorized. Taking an oath regarding his duties by the person rendering assistance is no part of the act of assisting the voter. Receiving assistance not authorized, not being assisted by an unsworn person, is the prohibited act voiding the ballot.'

In the course of the opinion the court then goes on to state:

'Art. 8.13 provides that no voter shall have assistance in preparing his ballot unless he can not do so because of some bodily infirmity that renders him physically unable to write or sightless. In Art. 5.05 Sec. 15 it is provided that assistance authorized by Art. 8.13 may be rendered absentee voters insofar as Art. 8.13 is applicable, the latter article stating specifically: 'The witness assisting the voter may perform any or all of the physical acts necessary to comply with the procedure for absentee voting.' It is probable that the restriction in Art. 8.13 of the assistance to the physically impaired and blind, if mandatory, would in a proper case be held unconstitutional as depriving persons unable to read and write of their franchise. The constitution does not make literacy a qualification to vote. However, when assistance is rendered, as is the case here, the quoted sentence from Art. 5.05 Sec. 15 pertaining to assistance to absentee voters should be interpreted as allowing assistance to a qualified voter in the performance of any or all of the physical acts necessary to comply with the absentee voting regulations. Such assistance includes marking the voter's ballot. As noted the proof made was that the voter did not suffer from certain specified physical impairments, such as blindness, loss of hands, etc., And no conclusive proof was made of the absence of other disabling physical condition.' (Last emphasis ours).

Thus, the language of the court as to subdivision 15 loses some of its validity as the true basis for its holding, for it concludes that no conclusive proof was made as to the absence of other disabling physical conditions.

Fields v. Cotten was not decided on the basis that the language of subdivision 15 was not mandatory (in passing on the same language of Art. 8.13), but that it was not proved that unauthorized assistance was received. The court then went on to state: '* * * the Other provisions of the Election Code covering this situation are directory. Mitchell v. Jones, Tex.Civ.App., 361 S.W.2d 224.' (Emphasis ours). In the case before us, the court found as a fact that the voters received assistance, and such finding is supported by the evidence and is not challenged. We hold that the portion of subdivision 15 in question is mandatory and that the nine votes in question should not have been counted for appellee.

The situation of Flora Zertuche is that she suffered a bodily infirmity in that she could not read without glasses, and when she appeared at the voting place it was discovered that she had failed to bring her glasses. Under the authority of White Oak Common School Dist. No. 19 v. Overstreet, Tex.Civ.App., 397 S.W.2d 334 (dism), a case of almost identical facts, we hold that her vote was properly counted for appellee.

Appellee seeks to raise the issue of the constitutionality of...