Prado v. Johnson

• Decision Date: 28 August 1981
• Docket Number: No. 16652,16652
• Citation: 625 S.W.2d 368
• Parties: Raul PRADO and Tony Martinez, Appellants, v. Eugene G. JOHNSON and Manuel Flores, et al., Appellees.
• Court: Texas Court of Appeals

Page 368

625 S.W.2d 368

Raul PRADO and Tony Martinez, Appellants, v.Eugene G. JOHNSON and Manuel Flores, et al., Appellees.

No. 16652.

Court of Civil Appeals of Texas, San Antonio.

Aug. 28, 1981.

Rehearing Denied Sept. 24, 1981.

Peter Torres, Jr., San Antonio, for appellant.

Joe P. Martin, Carolyn Barefield Luedke, Houston, for appellee.

Solomon Casseb, Jr., San Antonio, for intervenor.

OPINION

KLINGEMAN, Justice.

This is an election contest of the April 5, 1980, election of the South San Antonio School Board of Trustees.Two unsuccessful candidates, Raul Prado and Tony Martinez, herein called contestants, brought this suit against Eugene G. Johnson and Manuel G. Flores, two successful candidates (contestees) seeking to invalidate 220 absentee ballots cast by mail in such election and to be declared winners in the election.Contestants assert that all absentee ballots should be invalidated because certain requirements of the Texas Election Code with respect to absentee balloting were not complied with.After the contestants brought the suit, five voters intervened on behalf of themselves and to protect the interests of other voters who cast their mail-in absentee ballots which contestants sought to void.In a trial before the court, the district court ruled contestants' petition should be denied in its entirety and entered judgment for contestees and intervenors.

The contestants, appellants herein, bring this appeal complaining of two points of error as follows: (1)the trial court erred in declaring appellees the winners of the election in that the overwhelming evidence showed the election officials failed to comply with the mandatory requirements of Article 5.05, Subdivisions 5 and 6, Texas Election Code, in the casting of the 220 mail-in absentee ballots, and (2)the trial court erred in accepting and not invalidating mail-in absentee ballots because (a) the canvassing board was not properly constituted and met in closed session; (b) the absentee judges were not properly appointed; (c) the mail-in ballots were received and counted after the period when absentee voting was terminated, and (d) the mail-in ballots were not delivered to the presiding judge of the voter's precinct.

Article 5.05, Subdivisions 5 and 6 of the Texas Election Code provide that certain procedures be followed in the delivery of ballots to election judges and in the counting of ballots.The specific departures from the prescribed procedure complained of by appellants are (1) that the canvassing board did not prepare the poll list of the mail-in voters because this had been done by the individual election judges on a daily basis; (2) the canvassing board, as a board, did not meet to ascertain in each case if the voter was qualified because each of the election judges had individually made the comparisons of signatures, as the ballots came in on a daily basis; and (3) the canvassing board, as a board, did not open the carrier envelopes because these had already been opened and removed from the ballots, and negated the task of the canvassing board from placing the "sealed ballot envelope in the ballot box and the stub in the stub box."Appellees admit that certain prescribed statutory procedures were not followed; however, appellees argue that the provisions of the statute are directory rather than mandatory.

Contestants have made no allegations of fraud, either on the part of the absentee voters or the election officers.There is no evidence that any of the mail-in ballots which were tabulated in the election results were not legally applied for, cast, and returned to the election officials.

The general rule is that the performance of duties placed upon the election officials are directory, unless made mandatory by statute, while those placed upon the voters are mandatory.It has been said many times by our courts that the object of every popular election is to ascertain the will of the qualified electors in the area to be affected thereby upon the issue or issues submitted to them.Our courts have also said that statutory enactments concerning elections must be strictly enforced to prevent fraud but liberally construed in order to ascertain and effectuate the will of the voters.The rule is that statutes regulating the manner of holding an election are merely directory and a departure from their provisions will not ordinarily invalidate an election, unless such departure or such irregularities have affected or changed the results of the election.

This court in Fugate v. Johnson, 251 S.W.2d 792(Tex.Civ.App.-San Antonio 1952, no writ), stated that the aim of the Election Code is to safeguard the purity of the ballot box and at the same time to see that the will of the people shall prevail.The purpose of the Code is to prohibit error, fraud, mistake, and corruption, and yet it may not be used as an instrument of disfranchisement for irregularities of procedure.Since the will of the legal voters as expressed at the polls is the matter of paramount concern, and, in the absence of any showing of fraud, or reasonable indication that such will has not been fairly expressed and the evidence thereof properly preserved, the courts have been liberal in construing and enforcing as directory only the provisions of the election laws which are not upon their face clearly mandatory.Id. at 793.

In Serna v. Enriguez, 545 S.W.2d 281(Tex.Civ.App.-Corpus Christi 1976, no writ), the contestants in an election contest alleged that certain absentee votes should be disregarded because they were not cast in accordance with Article 5.05, Subdivision 2(a), which requires a written application before a voter may cast an absentee ballot.The court stated that Article 5.05, Subdivisions 1(c), (i), (ii), (iii) and (iv), were mandatory because the legislature expressly provided that the ballot shall not be counted in all situations where there was a violation of such Subdivisions.The court held, however, that Subdivision 2(a) was not mandatory because such Subdivision does not provide, as a penalty, that an absentee vote, cast in violation thereof, shall be void.The court further discussed the general rules with regard to whether a statute is mandatory or not, and stated:

In deciding whether a statute is mandatory or not, the legislative intent is determined from a consideration of the entire act, its nature, its object, and the consequences that follow from the construction thereof.Nichols v. Aldine Independent School District, 356 S.W.2d 182(Tex.Civ.App.-Austin1939, writ ref'd).'There is no absolute test by which it may be determined whether a statutory provision is mandatory or directory ... although the word 'shall' is generally construed to be mandatory, it may be and frequently is held to be directory.'Chisholm v. Bewley Mills, 155...