Prado v. Johnson, 16652

Citation625 S.W.2d 368
Decision Date28 August 1981
Docket NumberNo. 16652,16652
PartiesRaul PRADO and Tony Martinez, Appellants, v. Eugene G. JOHNSON and Manuel Flores, et al., Appellees.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas


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.-Austin 1939, 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 'sh...

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9 cases
  • Honts v. Shaw
    • United States
    • Texas Court of Appeals
    • September 8, 1998 the sense that their violation does not justify an order setting aside the election. See Prado v. Johnson, 625 S.W.2d 368, 369-70 (Tex.Civ.App.--San Antonio 1981, writ dism'd w.o.j.); Little v. Alto Indep. Sch. Dist., 513 S.W.2d 886, 891 (Tex.Civ.App.--Tyler 1974, writ dism'd The purpose......
  • Alvarez v. Espinoza
    • United States
    • Texas Court of Appeals
    • November 19, 1992
    ...for courts to set aside an election without proof that the violation affected the result. See Prado v. Johnson, 625 S.W.2d 368, 369-71 (Tex.Civ.App.--San Antonio 1981, writ dism'd); Little v. Alto Indep. Sch. Dist., 513 S.W.2d 886, 891 (Tex.Civ.App.--Tyler 1974, writ dism'd). To overturn an......
  • Wright v. Graves
    • United States
    • Texas Court of Appeals
    • April 5, 1984
    ...of (Name of medical facility to be closed).' "3 See Fowler v. State, 68 Tex. 30, 3 S.W. 255 (1887); Prado v. Johnson, 625 S.W.2d 368 (Tex.Civ.App.--San Antonio 1981, writ dism'd); Zavaletta v. Parker, 611 S.W.2d 466 (Tex.Civ.App.--Corpus Christi 1980, no writ); Little v. Alto Ind. Sch. Dist......
  • Guerrero v. State
    • United States
    • Texas Court of Appeals
    • November 21, 1991
    ...29 C.J.S. Elections § 208(a) (1965). Section 64.036 of the Election Code is just such a provision. See Prado v. Johnson, 625 S.W.2d 368, 369 (Tex.Civ.App.--San Antonio 1981, writ dism'd) (the purpose of the Election Code is to safeguard the purity of the ballot box ... and to prohibit error......
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