Rodriguez v. Cuellar, 04-04-00335-CV.

Decision Date12 July 2004
Docket NumberNo. 04-04-00335-CV.,04-04-00335-CV.
Citation143 S.W.3d 251
PartiesCiro D. RODRIGUEZ, Appellant, v. Henry CUELLAR, Appellee.
CourtTexas Court of Appeals

Randall Buck Wood and Doug W. Ray, Ray, Wood & Bonilla, L.L.P., Austin, for Appellant.

Steve Bickerstaff, David Mendez, C. Robert Heath, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P, Austin, Baldemar Garcia, Jr., Martha Cigarroa De Llano, Person, Whitworth, Borchers & Morales, L.L.P., Laredo, for Appellee.

Sitting: ALMA L. LOPEZ, Chief Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, and PHYLIS J. SPEEDLIN, Justice.


Opinion by PAUL W. GREEN, Justice.

Because of the high degree of public interest in this case and to maintain uniformity of the court's decisions, a majority of the court has granted Henry Cuellar's motion for en banc reconsideration. See TEX.R.APP. 49.7. Accordingly, we withdraw the panel's opinion and judgment and substitute the following in their place.


This appeal arises out of an election contest between Ciro D. Rodriguez, the incumbent representative for the United States Twenty-Eighth Congressional District of Texas, and Henry Cueller, who challenged Rodriguez in the 2004 Democratic primary. After the votes were counted, Rodriguez appeared to be the winner by 145 votes. A district-wide recount requested by Cuellar resulted in a "net swing" of 348 votes in Cuellar's favor. Shortly thereafter, Cuellar was declared the winner by 203 votes.

On April 14, Rodriguez timely filed an original petition contesting the election. See Tex. Elec.Code Ann. § 232.008(c) (Vernon 2003) (election contest petition must be filed within ten days after votes are canvassed). Rodriguez's original petition consists of four paragraphs. Paragraph I, entitled "Factual Background," sets forth a brief summary of the initial canvass numbers, the recount numbers, and the "net swing in Cuellar's favor." Paragraph II, entitled "The Case," details the "huge vote count change which was almost totally confined to the early and mail-in vote in only two of the eleven counties, Webb and Zapata." Paragraphs III and IV of Rodriguez's original petition allege as follows:


Contestant and voters for contestant were subjected to disparate voting systems and procedures that violated their equal protection and due process rights under the Texas Constitution. Such violations prevent the Court from determining the true outcome of the election.


Contestant says there were irregularities in the casting, counting and recounting of the votes in the election which such irregularities reversed the true outcome of the election.

Paragraph V of Rodriguez's original petition alleges the district court has jurisdiction and venue over the contest, while paragraph IV concerns the discovery plan.

Cuellar timely filed his answer to the contest, see id. § 232.008(c) (answer must be filed within five days after service of an election contest petition), and a plea to the jurisdiction. In both, Cuellar contended Rodriguez's original petition did not call into question a sufficient number of votes to change the outcome of the election and, consequently, failed to allege a contest within the jurisdiction of the court. Under the Election Code, trial should have been scheduled for five days later — April 25. See id. at § 232.012 (requiring trial in election contest five days after filing of answer but providing for a short continuance).

On April 28 Rodriguez filed his first amended original petition. In this amended petition, paragraphs I, II, and III are identical to paragraphs I, II, and III of the original petition. Added to the amended petition was a new paragraph IV, which states as follows:

A. In excess of 100 persons cast ballots in the election at issue here who were not qualified to vote in the election or were permitted to cast votes in the election but should not have under the laws of this State.

Persons voted in the election that:

1. were registered at addresses at which they did not reside;

2. voted at polling places in areas where they did not reside;

3. had absented themselves from a residence where they were registered for a time that was not temporary;

4. were not properly registered in a manner that qualified them to vote in the election 5. showed addresses on their voter registration applications that were vacant lots or abandoned houses;

6. gave information to election officials in order to vote in this election that was inaccurate or false;

7. cannot be found to exist;

8. persons shown voting but did not vote;

9. were assisted in voting in a manner contrary to law;

10. registered at addresses that do not exist; and/or

11. someone other than the voter voted the ballot in a manner not permitted by law.

B. In the Webb County recount, votes were recorded for [Cueller] that should not have been so counted. One hundred fifteen votes were recorded for [Cueller] where there is no record that these ballots were ever cast by voters in the election and were not shown by the official counts on election day.

C. In the Webb County recount, Contestee Cuellar was recorded as having gained 177 votes where [Rodriguez] was recorded as gaining 0 votes. Furthermore in the recount, the number of ballots that had been recorded in the original count as being "no" votes in District 28 were reduced by 52 votes. This number added to the 115 new undocumented additional votes recorded in the recount results in 177 new votes, every one of which appears to have been awarded to Cuellar. Such a result defies any level of credibility.

Additionally, paragraph IV in the original petition became paragraph V in the amended petition with the addition of a one-sentence paragraph, as follows:


[Rodriguez] says there were irregularities in casting, counting and recounting of the votes in the election which such irregularities reversed the true outcome of the election.

The illegally cast votes as referenced in paragraph IV, either standing alone or in combination with the errors in the Webb County recount, (without regard to Zapata County) are sufficient in numbers to have affected the 203 vote lead by [Cuellar] and changed the outcome of the election.

Paragraphs IV and VII in the amended petition are identical to paragraphs V and VI of the original petition. In short, the amended petition differs from the original petition in two respects: (1) the addition of a new paragraph IV, which sets forth the ways in which "100 persons casts ballots in the election at issue here who were not qualified to vote in the election or were permitted to cast votes in the election but should not have under the laws of this State"; and (2) the addition in paragraph V of a sentence stating that the illegally-cast votes referenced in paragraph IV would be sufficient to change the outcome of the election.

The day after Rodriguez filed his amended petition, the trial judge indicated that, court space permitting, the trial would be conducted on May 10 or 11. A few days later, Cuellar amended his plea to the jurisdiction. In his amended plea, Cuellar asserted that the trial court's jurisdiction was limited to Rodriguez's recount allegations. Cuellar also moved to strike the amended petition, asserting that the illegal vote claim was a new basis for the contest and should be stricken because it was prejudicial on its face or otherwise resulted in surprise. The trial court granted Cuellar's amended plea to the jurisdiction, struck the illegal vote allegations and excluded evidence concerning illegal voting at trial. The trial court also granted Rodriguez's earlier motion, which asked to recount and inspect the ballots because there were irregularities in the counting and recounting of the ballots. After the judicially-supervised recount, Cuellar was left with only a fifty-eight vote margin of victory.

On May 11, when the case was called for trial, Rodriguez argued that logistical problems had prevented a proper inspection of ballots and permitted inspection of less than ten percent of the Webb County ballots and orally moved to continue or recess the trial. The trial court denied the motion but granted Rodriguez permission to file an untimely written motion. Rodriguez's attorney then informed the court that, as a result of the court's rulings, he was unable to present evidence of a sufficient number of irregular ballots to alter the outcome of the election. The court accordingly signed a judgment in Cuellar's favor.


Rodriguez contends the trial court erred in granting Cuellar's plea to the jurisdiction because the court's jurisdiction to consider his election contest was properly invoked by his original petition and was unaffected by his amended petition. We agree.

Standard of Review

Whether a trial court has subject matter jurisdiction is a question of law and is therefore reviewed de novo. See Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).


Cuellar argues, and the trial court ruled, the jurisdictional issue is governed by this court's opinion in Tiller v. Martinez, 974 S.W.2d 769 (Tex.App.-San Antonio 1998, pet. dism'd w.o.j.), and specifically the court's statement that, "[b]ecause the petition stated the grounds upon which Martinez contested the election and pleaded sufficient facts to give Tiller notice of such, it was sufficient to invoke the jurisdiction of the district court." Cuellar's and the trial court's reliance on Tiller is misplaced.

At issue in Tiller was "the election results in the Martinez-Tiller race" for a place on the Alice Independent School District board of trustees. Id. at 771. After Tiller was declared the winner of Place 3 by fifteen votes, ...

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