Jordan v. Westbrook

• Decision Date: 02 July 1969
• Docket Number: No. 14790,14790
• Citation: 443 S.W.2d 616
• Parties: J. B. JORDAN, Appellant, v. W. W. 'Bill' WESTBROOK, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 616

443 S.W.2d 616

J. B. JORDAN, Appellant, v. W. W. 'Bill' WESTBROOK, Appellee.

No. 14790.

Court of Civil Appeals of Texas.

San Antonio.

July 2, 1969.

Lewis E. Berry, Jr., Michael Burns, Austin, Jerry A. Gibson, San Antonio, for appellant.

Franklin & Franklin, Arnold W. Franklin, Jourdanton, for appellee.

KLINGEMAN, Justice.

This is an election contest. Appellant, J. B. Jordan, contests the election of appellee, W. W. 'Bill' Westbrook, as County Commissioner of Precinct No. 2, Atascosa County, Texas, on the grounds that a number of lawful votes sufficient to change the result of the election in favor of contestant were not counted by the election officials and should have been counted for him. The district court sitting without a jury entered judgment denying the contest filed by appellant and decreeing contestee to be the winner of such election.

The trial court made findings of fact which may be summarized as follows: In the general election in Atascosa County, Texas, on November 5, 1968, Westbrook was the Democratic nominee and his name appeared on the official ballot in the Democratic column. There were five independent candidates and, according to the official election returns, Westbrook received 450 votes, Jordan 429, Russell 87, Young 120, Rogers 72, Martin 245. On the face of these returns the canvassing board declared Westbrook to be elected to the office of County Commissioner of Precinct No. 2 of Atascosa County, Texas. Several witnesses were placed on the witness stand who served as reading clerks in Precinct 16, a voting box within Commissioners Precinct No. 2, and each testified that he or she read out a number of ballots; that there were 'a number of ballots' ¹ where the voter placed an 'X' at the head of one of the political party columns and also placed an 'X' opposite the name of J. B. Jordan; that 'these ballots' ¹ were not counted for either candidate, in keeping with the instructions from the judge of the election precinct. These witnesses further testified that there were a sufficient number of these ballots so marked, that if they had been counted for Jordan it would have changed the result of the election. The Court did not go into the ballot boxes and check the ballots because the Court was of the opinion that these ballots were properly not counted for either candidate.

The court filed the following conclusions of law:

'I conclude that when a voter places an 'X' at the head of a party column he, under the law, evidences an intention to vote for each candidate whose name appears in that column, and when such voter places an 'X' opposite the name for an independent candidate in another column he had evidenced an intention to also vote for that independent candidate, and thus he has evidenced an intention to vote for two candidates for the same office, and his vote cannot be counted for either.

'W. W. 'Bill' Westbrook was properly declared elected County Commissioner of Precinct No. 2, Atascosa County, and I decide this contest in his favor.'

Appellant asserts one point of error: 'The District Court erred in holding that when a voter places an 'X' at the head of a party column and also places an 'X' opposite the name of an independent candidate in another column he has indicated an intent to vote for both the candidate individually marked and the candidate for the same office in the marked party column, and therefore his vote cannot be counted for either; because the voter's intent is clearly to vote for the candidate individually marked and under the applicable law in such case the voter's intent should control in the counting of the ballot.'

The pertinent articles of the Election Code herein involved are Vernon's Ann.Civ.St. art. 6.06, which sets forth the method of marking ballots, and art. 8.21, which provides for the voiding of a vote where 'two (2) or more persons are upon a ballot for the same office.'

This case is before us without any statement of facts; none of the ballot boxes involved were brought up to this Court, and the record contains no exhibits or stipulations.

It is the policy of the law to uphold declared results of an election in all cases except where there is clear and convincing evidence of an erroneous result. Johnston v. Peters, 260 S.W. 911 (...