Ortiz v. Thompson, 6187

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: JAMES
• Citation: 604 S.W.2d 443
• Parties: Rudy C. ORTIZ, Appellant, v. Bob THOMPSON, Appellee.
• Docket Number: No. 6187,6187
• Decision Date: 31 July 1980

Page 443

604 S.W.2d 443 Rudy C. ORTIZ, Appellant,
v.
Bob THOMPSON, Appellee. No. 6187. Court of Civil Appeals of Texas, Waco. July 31, 1980.

Page 444

Paul D. Rich, San Antonio, for appellant.

Randall B. Wood, Ray & Wood, Austin, for appellee.

OPINION

JAMES, Justice.

This is an election contest case. Appellant-Contestant Rudy C. Ortiz and Appellee-Contestee Bob Thompson were the only two candidates for the position of Councilperson, Place 6, for the City of San Antonio in a municipal election held on Saturday, April 7, 1979. Thompson was certified as the winner of that election, the return thereof showing 4,186 votes cast for Thompson and 4,102 votes cast for Ortiz. Ortiz brought this suit contesting the election, alleging as grounds therefor: (1) that prior to the election "the City of San Antonio, Texas, designated new polling places", at least one of which was located in District 6, that such changes "were required to be precleared by the Department of Justice", that the city failed to obtain such preclearance, and that the changes therefore violated the Federal Voting Rights Act of 1965, 42 U.S.C. Sec. 1973 et seq.; (2) that "scores of voters" were denied the right to vote because they were "erroneously registered to precincts in which they did not reside"; (3) that during absentee voting, Thompson's campaign workers engaged in "fraudulent and unlawful conspiratorial actions" which "suppressed the will of the legal voters" and violated V.A.T.S. Election Code Art. 5.05 and other laws, to wit: "falsely impersonated officials and picked up completed ballots and caused the ballots not to be returned to the proper officials by suppressing same and/or destroying them; gave false information and directions regarding the procedures to vote; requested ballots for prospective electors who in fact had not requested same; fraudulently suggested to qualified voters that by filling in some ballots and other forms that such persons were in fact voting, thereby causing such voters not to cast official ballots; gave qualified voters who had not applied or received a ballot by mail, a ballot to be cast in their homes; and (4) that "several qualified electors were denied their rights to vote . . . due to the severe mechanical problems occurring shortly after the polls opened."

Trial was to the court without a jury, after which the trial court rendered judgment in favor of the Contestee Thompson. Said court made Findings of Fact and Conclusions of Law, which included, inter alia, the following:

"FINDINGS OF FACT

"3. The canvassing board canvassed the results and certified that Robert S. Thompson received 4,186 votes and Rudy C. Ortiz received 4,102 votes. * * *

Page 445

"5. Seventeen persons in District 6 had voter registration certificates which contained erroneous precinct numbers.

"6. The evidence did not establish that any of the seventeen persons referred to in finding of fact number 5, were prevented or dissuaded from voting because of the error. * * *

"8. There was evidence that seventeen (17) persons over the age of 65 voted a mail absentee ballot for Councilperson, District 6, but their ballots were not received by the City Clerk and not counted.

"9. There was evidence that there were 1,192 persons over the age of 65 registered to vote in District 6.

"10. There was no evidence as to how many persons over the age of 65 voted in the election in District 6.

"12. The number of votes challenged, including the number of persons who were alleged to have been prevented from voting, was less than the difference in the margin by which Robert S. Thompson was declared the winner.

"13. The Court finds that the outcome of the election for Councilperson, District 6 is not impossible to determine.

"14. The facts before the Court show that the outcome as declared by the canvassing board declaring Robert S. Thompson the winner of the election is the correct result of the election.

"CONCLUSIONS OF LAW

"1. The Court concludes as a matter of law that the Court was without jurisdiction to adjudicate any alleged violations of the Federal Voting Rights Act because the Act specifies that such adjudication must be before a three-judge Federal District Court.

"2. The Court concludes as a matter of law that the Court was without jurisdiction to adjudicate any alleged violation of the Federal Voting Rights Act in a contest of election under Texas law because the grounds for a Texas Election Contest must be found or implied in the Texas Election Code. * * *

"4. The Court concludes that Contestant, having failed to prove that irregularities occurred in the holding of the election which affected a number of votes sufficient to change the outcome of the election, is not entitled to judgment as a matter of law."

We affirm the trial court's judgment.

Appellant Ortiz brings this appeal on seven...