Olivarez v. Aguilar, 14754

• Decision Date: 03 October 1968
• Docket Number: No. 14754,14754
• Citation: 431 S.W.2d 932
• Parties: Heralio OLIVAREZ, Appellant, v. Blas AGUILAR, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 932

431 S.W.2d 932

Heralio OLIVAREZ, Appellant, v. Blas AGUILAR, Appellee.

No. 14754.

Court of Civil Appeals of Texas San Antonio.

Oct. 3, 1968.

F. R. Nye, Jr., Alex Gabert, Rio Grende City, Luther E. Jones, Jr., Corpus Christi, for appellant.

Arnulfo Guerra, Roma, John A. Pope, III, Rio Grance City, Bill Ellis, Jr., McAllen, for appellee.

PER CURIAM.

This is a primary election contest involving the nomination of the Democratic Party for the office of Constable of Precinct Number Four of Starr County, Texas. The trial court concluded, after a full hearing, that appellee, Blas Aguilar, had received 340 votes to 334 votes for appellant, Heralio Olivarez, and judgment was accordingly entered declaring appellee to be the nominee.

Appellant urges as the sole ground for reversal that seven absentee votes for Aguilar are invalid because the medical certificate accompanying each voter's application was not executed by a duly licensed physician as required by Sec. 2, Art. 5.05, Election Code, Vernon's Ann.Civ.St. All facts relating to these seven absentee votes were stipulated by the parties.

It was stipulated that a medical certificate in the form required by law, executed by Dr. Arturo Martinez Figueroa, accompanied each application. Each of said voters, or his authorized agent, requested such examination and Dr. Figueroa designated the place for examining each voter as the voter's home in Starr County. Dr. Figueroa, since August 20, 1960, has been continuously a duly licensed physician, holding Certificate No. C5666, issued by the State Board of Medical Examiners. His medical certificate was duly registered in the office of the District Clerks of Zapata County and Webb County, but was not registered in the office of the District Clerk of Starr County until subsequent to this election. Dr. Figueroa has been at all times herein material a resident of Zapata County. Dr. Figueroa did not reside in Starr County, maintain an office in Starr County, or make any designations in Starr County other than making such examinations at the home of each voter.

Art. 4498, Vernon's Ann.Civ.St., and Art. 739, Vernon's Ann.P.C., provide in part: 'It shall be unlawful for any one to practice medicine * * * who has not registered in the District Clerk's office of every County in which he may reside, and in each and every County in which he may maintain an office or may designate a place for meeting, advising with, treating in any manner, or prescribing for patients, the certificate evidencing his right to practice medicine * * *.'

It has been held that a voter must...