McGee v. Grissom, 16410
| Decision Date | 21 September 1962 |
| Docket Number | No. 16410,16410 |
| Parties | F. M. McGEE, Appellant, v. W. H. GRISSOM, Appellee. |
| Court | Texas Court of Appeals |
Shirley W. Peters, Denton, for appellant.
Joe H. Cleveland and Jack Lovette, Bowie, for appellee.
This is an election contest. F. M. McGee and W. H. Grissom were run-off candidates for county commissioner in the second primary held on June 2, 1962. The election officers certified that Grissom received 397 votes and McGee 393. McGee filed this contest, and the district court found that 59 illegal votes were cast and ordered that 33 votes be subtracted from McGee's total and 26 from Grissom's total, leaving Grissom a majority of 11. McGee has appealed.
Appellant challenges the court's ruling in holding void 21 absentee votes because the medical certificate which was attached to each application for a ballot was obtained and completed and delivered fraudulently, based upon the following findings of fact and conclusions of law: the applications with the blank medical certificates attached thereto were brought to the certifying physician by appellant and his wife; the physician at the request and in the presence of appellant or his wife executed these certificates and delivered all of them to appellant or his wife; the physician is 77 years of age and has been retired for about 3 vears; she has not made any calls or received any patients for more than 3 years; she was not the family physician of any of said voters, and had never at any time been the doctor for some of them; she had treated some of them 'years ago' but was not able while testifying to remember the persons she had treated; she had not seen any of said voters in over 3 years, and did not see or examine any of them when she executed these certificates and did not know of the disability or the specific reason why the medical certificates were executed; she did not have personal knowledge of the physical condition of any of said voters.
Untile the amendment of Article 5.05 of the Election Code by House Bill No. 134, Acts of 1959, 56th Leg., p. 1055, ch. 483, V.A.T.S., it was held that the provisions of the absentee voting law were directory unless the Legislature had otherwise declared. Fugate v. Johnston, Tex.Civ.App., 251 S.W.2d 792; Paredes v. Martinez, Tex.Civ.App., 264 S.W.2d 958. The caption of the amendment states that its purpose, among other things, is to define and prescribe additional requirements with respect to absentee ballots and the applications therefor; and the emergency clause recites that 'The fact that the changes made by this Act will eliminate many of the abuses now prevailing in absentee voting creates an emergency and an imperative public necessity that the Constitutional Rule requiring bill to be read on three several days in each House be suspended, and this Rule is hereby suspended, and that this Act take effect and be in force from and after its passage.'
The amendment provides that if the ground of the application for an absentee ballot be sickness or physical disability by reason of...
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