McCurry v. Lewis

• Citation: 259 S.W.3d 369
• Decision Date: 03 July 2008
• Docket Number: No. 07-07-0427-CV.,07-07-0427-CV.
• Parties: Jimmy McCURRY, Appellant v. Kent LEWIS, Appellee.
• Court: Court of Appeals of Texas

259 S.W.3d 369

Jimmy McCURRY, Appellant v. Kent LEWIS, Appellee.

No. 07-07-0427-CV.

Court of Appeals of Texas, Amarillo.

July 3, 2008.

Eric Opiela, Opiela Booth PLLC, Austin, for Appellant.

Randall B. Wood, Doug W. Ray, Ray, Wood & Bonilla, Austin, for Appellee.

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

In this appeal of an election contest, appellant and contestee below Jimmy McCurry asks us to set aside the trial court's judgment voiding the November 2006 general election for Lamb County commissioner precinct two and reinstate the original final canvas, which showed him the winner over appellee and contestant below Kent Lewis. Finding the trial court did not abuse its discretion in declaring the election void, we affirm its judgment.

Background

Following the November 27, 2006, final canvassing of votes in the election for Lamb County commissioner precinct two, McCurry appeared the winner by a margin of three votes. Lewis filed an election contest on December 21 inter alia complaining that an error in voter registration rolls prevented over a dozen persons from voting for Lewis. A bench trial was held October 4, 2007, and at its conclusion the court found it could not declare the true outcome of the election. It declared the election void and ordered a new election. McCurry requested and obtained findings of fact and conclusions of law and timely appealed. Among its findings, the court found an election official¹ prevented eligible voters from voting and the number of eligible voters prevented from voting "was sufficient to have or could have changed the outcome of the election."

Issue One: Is timely notice to the Secretary of State jurisdictional?

McCurry presents four issues. In his first issue, McCurry argues the trial court was without subject matter jurisdiction of the election contest because Lewis did not deliver a copy of his petition to the Texas Secretary of State within the time required by the Election Code.² We review a trial court's order granting or denying a plea to its subject matter jurisdiction de novo. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex.2007).

It is undisputed that Lewis delivered a copy of his petition to the secretary of state on January 11, 2007, some forty-five days after the election's official result was determined. McCurry filed a plea to the trial court's jurisdiction asserting the untimely delivery of the petition to the secretary of state deprived the court of jurisdiction. The court denied McCurry's jurisdictional challenge on the day of trial. In a conclusion of law, it held that delivery of notice to the secretary of state is an administrative act and failure to strictly comply was not jurisdictional.

In support of his jurisdictional argument, McCurry contends that prior to enactment of the current Election Code in 1985 a substantial body of caselaw developed for the proposition that notice of a contest suit was jurisdictional.³ The Austin Court of Appeals, however, held in Honts v. Shaw, 975 S.W.2d 816, 820 (Tex. App.-Austin 1998, no pet.), that the requirement of section 232.008(d) is not jurisdictional. We agree with the Austin court's holding, and the rationale expressed in its opinion.

McCurry argues Honts was wrongly decided. He points to caselaw holding that when the legislature amends a statute, it is presumed to have taken notice of its prior interpretation by the courts. See Walker v. Thetford, 418 S.W.2d 276, 292 (Tex.Civ. App.-Austin 1967, writ ref'd n.r.e.). McCurry contends the legislature thus is presumed to have been aware of caselaw holding other requirements set forth in section 232.008 to be jurisdictional, leading to the conclusion it placed the requirement of notification of the secretary of state within that section with the intention it also be jurisdictional. A similar argument was rejected by the court in Nichols v. Seei, 97 S.W.3d 882, 884 (Tex.App.-Dallas 2003, no pet.), dealing with the similar notice requirement of section 233.006(c).⁴ We reject it here, for the same reasons cited by the Dallas court.

Finding the trial court did not err by overruling McCurry's plea to the jurisdiction, we overrule his first issue.

Issues Two & Three: Evidence Supporting Trial Court's Overturning Election

We will discuss McCurry's second and third issues together. By his second issue McCurry challenges the legal sufficiency of the evidence supporting findings of fact two and three, in which the court found that an election official prevented eligible voters from voting in a number sufficient to change the election result. McCurry's third issue contends Lewis failed to carry his burden of proving the outcome of the election was materially affected by irregularities of election officials.⁵

"The standard of review in an appeal from a judgment in an election contest is a determination whether the trial court abused its discretion." Tiller v. Martinez, 974 S.W.2d 769, 772 (Tex.App.-San Antonio 1998, pet. dism'd w.o.j.). A trial court abuses its discretion when it acts "without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Thus we may not reverse the judgment of the trial court, if the trial court acted within its discretion, simply because we might have reached a different result. Id. at 242.

Under the abuse of discretion standard, the sufficiency of evidence supporting the trial court's findings is a factor we consider in determining whether the court abused its discretion. Willet v. Cole, 249 S.W.3d 585, 591 n. 4 (Tex.App.-Waco 2008, no pet.); In re J.R.C., 236 S.W.3d 870, 875 (Tex.App.-Texarkana 2007, no pet.). In a non-jury case, when the appellate record includes both findings of fact and conclusions of law and a reporter's record, we review the sufficiency of the evidence under the same standards applied in cases tried by jury. Slusher v. Streater, 896 S.W.2d 239, 241 (Tex.App.-Houston [1st Dist.] 1995, no writ). In reviewing the legal sufficiency of the evidence under a clear and convincing standard, we look at all the evidence, in the light most favorable to the judgment, to determine if the trier of fact could reasonably have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex.2002). We disregard any contrary evidence if a reasonable trier of fact could do so, but we do not disregard undisputed facts. In re J.L., 163 S.W.3d 79, 85 (Tex.2005).

To set aside the outcome of an election, the contestant must prove by clear and convincing evidence that a violation of the Election Code occurred, and it materially affected the outcome of the election. See Willet, 249 S.W.3d at 589; Olsen v. Cooper, 24 S.W.3d 608, 610 (Tex. App.-Houston [1st Dist.] 2000, no pet.); Honts, 975 S.W.2d at 822; Slusher, 896 S.W.2d at 241; Tex. Elec.Code Ann. § 221.003 (Vernon 2003).

A court trying an election contest shall attempt to ascertain whether the outcome shown by the final canvass was not the true outcome because illegal votes were counted or an election official prevented eligible voters from voting, failed to count legal votes, or engaged in other fraud, illegal conduct, or mistake. Tex. Elec. Code Ann. § 221.003 (Vernon 2003).

The outcome of an election is "materially affected" when a different and correct result would have been reached in the absence of irregularities, see Price v. Lewis, 45 S.W.3d 215, 218 (Tex.App.-Houston [1st Dist.] 2001, no pet.), or irregularities in the conduct of the election render it impossible to determine the majority of the voters' true will. Guerra v. Garza, 865 S.W.2d 573, 576 (Tex.App.-Corpus Christi 1993, writ dism'd w.o.j.); Frias v. Board of Trustees, 584 S.W.2d 944, 948 (Tex.Civ. App.-El Paso 1979, writ ref'd n.r.e.), cert. denied, 444 U.S. 996, 100 S.Ct. 531, 62 L.Ed.2d 426 (1979); Tex. Elec.Code Ann. § 221.012(b) (Vernon 2003).

The facts leading to the contest are largely undisputed. Because officials used a map containing errors when precincts were redistricted after the 2000 census, some Lamb County registered voters were assigned, by mistake, to election precinct two, when they actually resided in election precinct six.⁶ Election precinct six is within Lamb County commissioners' precinct two, election precinct two is not. At the 2006 general election, the voting box for election precinct two was located at the Littlefield junior high school, and the box for election precinct six was located at the Texas Department of Transportation building. Because commissioner precinct two did not include the area within election precinct two, the election for commissioner precinct two did not appear on the ballot given voters at the junior high school. Lamb County voter registrar Linda Charlton learned of the errors in the residents' election precinct assignment within thirty days of the election but testified this was an insufficient period for remedial measures. She believed affected voters could vote provisionally but decided to leave the matter to the election judges.

Rusty Smith testified he presented for voting at the TxDOT building but was told to call the courthouse because his name did not appear on the voting list although he was a registered voter. An unidentified person at the courthouse directed Smith to the junior high school where he voted a ballot that did not include the precinct two commissioner's election.

Rudy Ayala had voted in election precinct two at the junior high school for about forty years. While voting in the 2006 general election, he noticed his ballot did not include the precinct two commissioner's election. Ayala pointed out the omission to an election judge who told him, "`If his name is not on there, you don't vote.'"

Albert Ayala is the son of Rudy Ayala. Albert chose to vote electronically and like his father pointed out to an election judge that the precinct two commissioner's race was absent from the ballot....