Honts v. Shaw

Decision Date08 September 1998
Docket NumberNo. 03-98-00217-CV,03-98-00217-CV
Citation975 S.W.2d 816
PartiesBob HONTS and Herman "Tex" Moten, Sr., Appellants, v. Jim SHAW and Mark A. Wallace, Appellees.
CourtTexas Court of Appeals

Doug W. Ray, Randall B. Wood, Ray, Wood & Fine, L.L.P., Austin, for Appellants.

Douglas M. Becker, Gray & Becker, Austin, for Appellees.


JONES, Justice.

Appellants Bob Honts and Herman "Tex" Moten, Sr., filed an election contest challenging the outcome of the Republican primary election held on March 10, 1998, for the Republican nomination of County Commissioner, Precinct Two and Precinct Chairman, Election Precinct 250. The district court rendered judgment upholding the election and declaring appellee Jim Shaw as the Republican nominee for County Commissioner and appellee Mark A. Wallace as Election Precinct 250 Chairman. We will affirm the trial court's judgment.


The following matters are uncontested. On December 1, 1997, Patrick O'Grady became Travis County Republican Party primary administrator for the primary election scheduled for March 10, 1998. On December 1, 1997, Patrick McNamara became deputy primary administrator.

O'Grady and McNamara began recruiting election workers in early December by sending mailings to previous precinct chairs from the 1996 election, soliciting assistance to serve as election workers and to find other volunteers. Despite their efforts, it became apparent by January 1998 that they were experiencing difficulty in recruiting enough election workers to staff the polling places in all election precincts fixed by the county commissioners court. See Tex. Elec.Code Ann. § 42.002 (West Supp.1998).

In a meeting held January 13, 1998, the Travis County Republican Party Executive Committee, of which Republican County Chairperson Jan Galbraith was a member, delegated authority to O'Grady to "appoint election judges at his discretion ... without the approval of the executive committee to facilitate the process" and "to make any and all decisions regarding the location and possible consolidation of some of the precinct polling places." O'Grady made McNamara responsible for Commissioner's Precincts Two and Three, and he made two other part-time employees in the office responsible for Precincts One and Four.

O'Grady continued to aid McNamara and the other part-time employees in their efforts to secure polling places and election workers. Problems persisted nevertheless. These problems were not unlike those encountered by the Democratic Party. The Travis County Commissioners Court had formed numerous new election precincts in Commissioner's Precinct Two, and a disproportionately high number of boundary changes affecting Precinct Two made it more difficult to secure polling places in each precinct. The Travis County Clerk's office agreed to aid both the Republican and Democratic parties in their efforts to find polling places in each precinct, but was unsuccessful in locating polling places of sufficient size in some precincts. In addition, attempts were made to recruit additional volunteers from precincts that had their full quota of election workers. In the end, however, the efforts of O'Grady, McNamara, and others were less than successful.

O'Grady decided it was necessary to join some of the polling places. He attempted to join polling places based upon geographic proximity, tried to avoid joining three polling places together, attempted to join polling places where extra workers were available, and worked to join precincts with lower numbers of registered voters. Election precincts in different commissioner's precincts were not joined. By election day, nineteen polling places out of sixty-six were joined in Commissioner's Precinct Two. Notice of the joined precincts was effectuated by two newspaper listings of polling places for Precinct Two in the Austin American-Statesman and by posting at previous polling places within the election precincts. The first newspaper listing on March 8, 1998, was correct. The newspaper listing on election day, March 10, was correct except for a partial error pertaining to Election Precincts 233 and 249. At previous polling places, particularly those used in the November 1996 election, notices were posted informing the voters of the polling place for the March 10 Republican Party primary election. The postings were not systematic, however, and notices were not posted in all the nineteen precincts that were joined.

O'Grady prepared a list of joined precincts to post on the bulletin board next to the Travis County Commissioners Court by February 17, 1998, which Chairperson Galbraith signed. After a discussion with an employee of the election division of the clerk's office on February 17, however, O'Grady concluded there was no legal requirement to post notice of the joined precincts at the County Commissioners Court. Consequently, he did not post the notice.

Appellants adduced some evidence that O'Grady and McNamara held personal opinions favoring certain Republican candidates over others and that their political views were more conservative. The trial court found, however, that there was no evidence that their views or opinions influenced their actions as primary officials. The court concluded that neither O'Grady nor McNamara intended to mislead any voters or attempted to give any unfair advantage to a particular candidate. The court held specifically that there was no fraud or malicious motive on the part of either O'Grady or McNamara, and that there was no evidence that the election was unfair. Accordingly, the court concluded that there was no reason to void the election.

Subject-Matter Jurisdiction

In two cross-points of error, appellees assert that the trial court lacked jurisdiction to hear appellants' election contest on two grounds: (1) appellants failed to deliver a copy of their petition to the Secretary of State in violation of section 232.008(d) of the Texas Election Code (Election Code); and (2) appellants failed to secure a trial setting within five days of the date by which appellees were required to answer the petition in violation of section 232.012(d) of the Election Code. The trial court found that the deadlines prescribed by sections 232.008(d) and 232.012(d) of the Election Code were not jurisdictional and concluded that appellants' failure to comply with the requirements did not deprive the court of jurisdiction.

Appellees contend the procedural requirements for a contested election are mandatory because they exist only by and to the extent authorized by statute. See State v. City of Azle, 588 S.W.2d 666, 670 (Tex.Civ.App.--Fort Worth 1979, writ ref'd n.r.e.) (holding failure to comply with thirty-day notice requirement barred attack on election). Relying on cases decided on the basis of notice provisions in an earlier version of the Election Code, requiring that notice of intent to contest be served on the winner of the election, appellees argue that notice to the Secretary of State under section 232.008(d) is also mandatory and jurisdictional and, therefore, cannot be waived. See Jordan v. Norman, 711 S.W.2d 358, 359 (Tex.App.--Beaumont 1986, no writ); Mitchell v. Carroll Indep. Sch. Dist., 435 S.W.2d 280, 283 (Tex.Civ.App.--Fort Worth 1968, writ dism'd w.o.j); see also Ex parte Progreso Indep. Sch. Dist., 650 S.W.2d 158, 160 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.); Walker v. Thetford, 418 S.W.2d 276, 280 (Tex.Civ.App.--Austin 1967, writ ref'd n.r.e.). As to the setting of the trial date, appellees also argue that strict compliance is required under section 232.012(d) of the Election Code; however, appellees have not cited any authority in support of this jurisdictional claim.

Section 232.008 of the Election Code provides in pertinent part: "A contestant must deliver a copy of the petition to the secretary of state by the same deadline prescribed for the filing of the petition." Tex. Elec.Code Ann. § 232.008(d) (West Supp.1998). Unlike the notice provisions of the former Election Code considered in the decisions relied upon by appellants, section 232.008(d), which was added by amendment in 1997, requires notification of a non-party to the contest for informational purposes only. While Texas courts have held some filing requirements mandatory and jurisdictional, the decisions, including those relied upon by appellants, have involved either the court-filing deadline or notice of the filing to the contestee. See Jordan, 711 S.W.2d at 359; Ex parte Progreso Indep. Sch. Dist., 650 S.W.2d at 160; Mitchell, 435 S.W.2d at 283; Walker, 418 S.W.2d at 280.

Further, under the former Election Code, article 9.36 provided that failure to contest the election within the time prescribed would result in a presumption that the election results were valid and binding on the courts. See Mitchell, 435 S.W.2d at 283. Thus, the court concluded in Mitchell that failure to comply with the filing deadline required dismissal for lack of jurisdiction. Id. Section 232.008(d) of the Election Code does not specify the consequence for non-compliance. The Texas Supreme Court has held that when a statute does not specify the consequences for failing to give a required notice, the courts must look to the purpose of the statute for guidance. See Hines v. Hash, 843 S.W.2d 464, 468 (Tex.1992); see also Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956) ("If the statute directs, authorizes or commands an act to be done within a certain time, the absence of words restraining the doing thereof afterwards or stating the consequences of failure to act within the time specified, may be considered as a circumstance tending to support a directory construction."). In Hines, the court held that failure to give written notice at least thirty days before filing a Deceptive Trade Practices Act action pursuant to the statutory requirements did not require dismissal of...

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