Goodman v. Wise
| Decision Date | 06 August 1981 |
| Docket Number | No. 1949,1949 |
| Citation | 620 S.W.2d 857 |
| Parties | Robert M. GOODMAN, Appellant, v. Herman WISE, Appellee. |
| Court | Texas Court of Appeals |
This is an election contest. Both parties, Robert M. Goodman and Herman Wise, who were candidates for the office of City Commissioner of Harlingen, Texas, bring appeals from the judgment of the trial court. Contestee Goodman challenges the constitutionality of the bond filing requirements of the Texas Election Code arts. 9.09-9.13 (1967). Contestant Wise challenges certain voter irregularities in the election. The trial court found that Mr. Goodman was the duly elected candidate and denied all other claims for relief of the parties. We affirm.
The election was held on January 17, 1981, to fill two places on the City Commission of Harlingen, Texas. A field of five candidates was before the voters, who voted as follows: Tony Gutierrez (2089), Robert M. Goodman (1310), Herman Wise (1298), Ed Green (1018), and Robert F. Reed (549). On January 21, 1981, the results of the election were canvassed and Gutierrez and Goodman were declared by the City Council as the two winners of the election.
On February 20, 1981, Wise filed a contest pursuant to the Tex.Election Code Ann., Art. 9.03 (1967), challenging the vote totals on various grounds, some of which are as follows: improper tallying of absentee votes, voting by non-residents of the county, absence of protective controls on voting machines, and confusing ballot instructions. Under Article 9.09 of the Election Code, contestee Goodman had twenty days to file a bond in order to remain in office pending a judicial resolution of the election contest. Goodman failed to file a bond.
On April 14, 1981, notice was sent to Wise that Goodman did not file a bond. In compliance with Article 9.10, Wise filed his bond on April 15, 1981, which was certified under Article 9.11 to the Governor on that day. On April 28, 1981, the Governor issued a commission to Wise enabling him to fill the office pending the contest. On May 2, 1981, Wise was sworn into office as City Commissioner.
The hearing on the election contest, which took place on June 10, 1981, concerned other issues besides the legality of the election. Goodman, by way of cross-action, sought injunctive relief to enable him to remain in office. He also sought declaratory relief that Articles 9.09-9.13 were unconstitutional as violative of the due process and equal protection clauses of both the Texas and United States Constitutions. A third action brought by Goodman sought nominal damages pursuant to 42 U.S.C. § 1983. A third party action was also filed by six intervenors, who were legal voters in the election, seeking nominal damages (42 U.S.C. § 1983) and declaratory relief that their constitutional rights were violated because the person for whom they voted (Goodman) was barred from holding office pending the election contest. Since the constitutionality of a state statute was challenged, the Attorney General was served and appeared to represent the State's interest.
At the hearing, the trial court first considered the intervenor's action and found that they were not proper parties to the election contest and lacked standing to assert any of their claims. The trial court then considered Goodman's claims for injunctive relief, declaratory judgment, and damages, and found that it lacked jurisdiction to grant any relief for those claims. Finally, the trial court went to trial on the merits of the election contest. Thereafter, in finding that Wise had failed to carry his burden of proof as to his various claims of voter disqualification, fraud, or illegality which would change the results of the election, the Court held that Goodman was the lawfully elected City Commissioner and entitled to hold that office.
Findings of fact and conclusions of law were filed by the trial court specifically examining each alleged act of fraud and illegality. The judgment of the trial court, based on findings that no fraud or illegality occurred, will not be set aside if there is any evidence of a probative nature to support them. In reviewing the record, we shall consider only that evidence favorable to the findings and the judgment rendered thereon and shall disregard all evidence to the contrary. Ray v. Farmers State Bank of Hart, 576 S.W.2d 607, 609 (Tex.1979); Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951); Copenhaver v. Berryman, 602 S.W.2d 540, 547 (Tex.Civ.App. Corpus Christi 1980, writ ref'd n.r.e.).
The burden of proving illegality or fraud in an election contest is on the contestant. Wright v. Board of Trustees of Tatum Ind. School Dist., 520 S.W.2d 787 (Tex.Civ.App. Tyler 1975, writ dism'd), Grizzaffi v. Lee, 517 S.W.2d 885 (Tex.Civ.App. Fort Worth 1975 writ dism'd); 21 Tex.Jur.2d Elections § 179 (1960). Not only must the contestant prove that voting irregularities were present but also that they did in fact materially affect the results of the election. Gray v. Curry, 603 S.W.2d 245 (Tex.Civ.App. Houston (14th Dist.) 1980, no writ); Setliff v. Gorrell, 466 S.W.2d 74 (Tex.Civ.App. Amarillo 1971, no writ). It must be shown that a "... different result would have been reached by counting or not counting certain specified votes or irregularities were such as to render it impossible to determine the will of the majority of the voters participating." Ware v. Crystal City Independent School District, 489 S.W.2d 190 (Tex.Civ.App. San Antonio 1973, writ dism'd).
After thoroughly reviewing each alleged voting irregularity in light of the findings by the trial court, we affirm the judgment of the trial court that the contestant has failed to prove that the alleged fraudulent or illegal votes would have materially affected the outcome of the election. Gray v. Curry, supra; Bagley v. Holt, 430 S.W.2d 817, 821 (Tex.Civ.App. Texarkana 1968, writ ref'd n. r. e.). Contestant Wise failed to clearly establish for which candidate the alleged fraudulent or illegal votes were cast. Evidence and testimony from the allegedly illegal voters was within the reach of the contestant from which the true result of the election could be ascertained. The contestant failed to meet this burden of proof.
The contestant Wise further contends that the burden was on the trial court to compel the voters to testify for whom they voted. The trial court is under no duty to compel a voter to reveal for whom he voted until fraud or illegality has been established by competent evidence. Tex.Election Code Art. 9.38b (1981). Based on the findings of fact, the trial court was not presented with competent evidence to require the voters to disclose...
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