Reyes v. Zuniga, 04-90-00312-CV

Decision Date11 July 1990
Docket NumberNo. 04-90-00312-CV,04-90-00312-CV
Citation794 S.W.2d 842
PartiesRick REYES, Appellant, v. Bebe ZUNIGA, Appellee.
CourtTexas Court of Appeals

Carlos H. Barrera, Austin, for appellant.

J.C. Trevino, III, Laredo, for appellee.

Before CADENA, C.J., and BUTTS and REEVES, JJ.

OPINION

PER CURIAM.

This is an accelerated appeal, brought pursuant to TEX.ELEC.CODE ANN. §§ 232.014 and 232.015 (Vernon 1986), from the contest of a municipal election. This action arises out of the election for Mayor of the City of Laredo, conducted on May 5, 1990, which failed to produce an outright winner from a field of six candidates.

The unofficial returns of the election showed that the candidates received the following numbers of votes:

                     Candidate        Votes
                Saul N. Ramirez, Jr.  4,477
                Bebe Zuniga           2,696
                Rick Reyes            2,686
                Jose A. Valdez        2,139
                Lucas Galvan            602
                R.R. Donovan            133
                

After these results, Rick Reyes requested a recount, which was conducted on May 9, 1990, and resulted in the following distribution of votes:

                     Candidate        Votes
                Saul N. Ramirez, Jr.  4,374
                Rick Reyes            2,661
                Bebe Zuniga           2,660
                Jose A. Valdez        2,244
                Lucas Galvan            645
                R.R. Donovan            180
                

These results were canvassed by the City Council of the City of Laredo, based on the final report of the recount committee [required by TEX.ELEC.CODE ANN. § 213.012 (Vernon 1986) ], and accepted on May 10, 1990, and Saul N. Ramirez, Jr. and Rick Reyes were declared the runoff candidates.

On May 15, 1990, an alleged error was discovered in which vote figures were transposed on the tally sheets utilized in Precincts 4B, 7, and 12A; Hortencia Garcia, Laredo City Secretary and election supervisor, acknowledged the error. 1 After the tallies were corrected, the following distribution of votes was made:

After these results were released, Bebe Zuniga timely brought an election contest, under TEX.ELEC.CODE ANN. § 221.002 (Vernon 1986), requesting that the court correct the mistake in the recount and declare, as between herself and Rick Reyes, that she would be the runoff candidate against Saul Ramirez. 2 Rick Reyes filed his original answer and a cross-contest against Zuniga. The trial court conducted a hearing on May 23, 1990, and then signed a judgment on May 29, 1990. In part, the trial court found that:

[A] person officially involved in the administration of the election for the position of Mayor for the City of Laredo, has made a mistake. That the total votes canvassed and certified by the City Council for the City of Laredo were in error. The Court finds that an Election Official had transposed results of the recount in Precincts 4B and 7 and that a single vote for BEBE ZUNIGA had not been properly counted in Precinct 12A, and that such results when properly posted resulted in BEBE ZUNIGA receiving a total of 2699 votes and RICK REYES receiving a total of 2690 votes in the May 5, 1990 Mayoral Race. The Court finds that such transposed results and additional vote were a mistake and that BEBE ZUNIGA is entitled to participate in the run-off election for the position of Mayor of the City of Laredo. The Court further finds that this Judgment necessitates a run-off election in a contested race.

The trial court then ordered that Zuniga be declared the duly qualified candidate to face Saul N. Ramirez, Jr., in the runoff election for Mayor of the City of Laredo, and that her name be placed on the official ballot to be used for the runoff election. The trial court decreed that Reyes should take nothing by his cross-contest of the election.

The judgment did not mention that 153 ballots, which were variously described as "defaced" or "disputed" ballots at the election contest hearing, were locked in a ballot box, nor was there any reference to how many of those ballots, if any, were actually examined by the presiding election officer to ascertain voter intent in the contested race. The judgment also provided that the runoff election would be conducted June 16, 1990, and absentee voting by personal appearance was set to commence on June 6, 1990.

Appellant Reyes brings six points of error in this accelerated appeal, which are set forth as follows:

(1) the trial court erred in issuing a judgment in this matter for want of jurisdiction, in that Appellee Bebe Zuniga failed to give timely notice to Saul Ramirez and to make him, a statutorily necessary party, a party to this action;

(2) the trial court erred in failing to abate the proceedings to allow the joining of an absent necessary party (or parties) and thereby invoke the court's jurisdiction;

(3) appellee Bebe Zuniga failed to meet her burden of proof that the evidence was vague, speculative, and otherwise insufficient for the trial court to discern the genuine outcome of the election;

(4) the trial court abused its discretion in declaring an outcome of the election with insufficient evidence on which to base a judgment;

(5) the trial court erred in allowing, over appellant's objection, hearsay testimony and for disallowing appellant to take the witness on voir dire to establish that her testimony was hearsay; and

(6) the trial court abused its discretion in refusing to open the ballot boxes to examine whether or not certain defaced ballots could and/or should be counted.

The record before this court consists of a statement of facts containing the testimony of Hortencia Garcia, as well as exhibits germane to the discrepancy in vote tallies in the aforementioned precincts and resolutions from the City relevant to the canvass of votes.

In examining the first point of error, we note that section 232.003 of the Texas Election Code provides in part that:

(a) If a contested election is for nomination or election to an office for which only one person is to be nominated or elected, the contestee is:

... (2) if the final official canvass shows that a runoff election is necessary to decide the nomination or election:

... (A) each of the opposing candidates shown by the canvass to be entitled to or tied for a place on the runoff ballot if the contestant is not so entitled or tied....

TEX.ELEC.CODE ANN. § 232.003(a)(2)(A) (Vernon 1986) (emphasis supplied). Under the plain language of this section, Saul N. Ramirez, Jr., who received almost two thousand more votes in the election than the next-ranking candidate, should have been joined as a contestee, since under the final official canvass he is entitled to a place on the runoff ballot. The corollary of this is that the three candidates with the least number of votes (Valdez, Galvan and Donovan) were not necessary parties for adjudication of the election contest, because "under no supposable facts could a recount of votes result in their election." See Beeler v. Loock, 135 S.W.2d 644, 647 (Tex.Civ.App.--Galveston 1939, writ dism'd). 3 Therefore, we reverse and remand these proceedings, so that joinder of Ramirez can be accomplished forthwith and the recount of contested votes completed.

With regard to the sixth point of error, we observe that in the course of the hearing below, Reyes' attorney brought to the trial court's attention the provision of section 221.008 of the Election Code, which provides that:

A tribunal hearing an election contest may cause secured ballot boxes, voting machines, voting devices, or other equipment used in the election to be...

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2 cases
  • Rodriguez v. Cuellar, 04-04-00335-CV.
    • United States
    • Texas Court of Appeals
    • July 12, 2004
    ...Montemayor, No. 04-00-00517-CV, 2000 WL 33225302 (Tex.App.-San Antonio Dec.29, 2000, no pet.) (not designated for publication); Reyes v. Zuniga, 794 S.W.2d 842 (Tex.App.-San Antonio 1990, no writ). In both of those cases, unlike the instant case, the panel stated that it would not entertain......
  • Reyes v. City of Laredo
    • United States
    • Texas Court of Appeals
    • August 28, 1990
    ...discern, where possible, the intent of the voter on each of the 153 contested ballots or state why he was unable to do so. See Reyes v. Zuniga, 794 S.W.2d 842 (Tex.App.--San Antonio 1990 n.w.h.). On remand, the trial court was able to determine the voter intent for 152 of the ballots and du......

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