Rodriguez v. Cuellar, No. 04-04-00335-CV (TX 6/23/2004), No. 04-04-00335-CV.

CourtSupreme Court of Texas
Writing for the CourtAlma L. López
PartiesCIRO D. RODRIGUEZ, Appellant v. HENRY CUELLAR, Appellee.
Docket NumberNo. 04-04-00335-CV.
Decision Date23 June 2004

Page 1

No. 04-04-00335-CV.
Court of Appeals of Texas, Fourth District, San Antonio.
Delivered and Filed: June 23, 2004.

Appeal from the 341st Judicial District Court, Webb County, Texas, Trial Court No. 2004-CVQ-000-522-D3, Honorable Joseph H. Hart, Judge Presiding1


Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Paul W. GREEN, Justice.


Opinion by: ALMA L. LÓPEZ, Chief Justice.

In this election contest case, Ciro D. Rodriguez ("Rodriguez") challenges the trial court's orders granting a plea to the jurisdiction and denying a motion for continuance. Rodriguez presents three issues on appeal, contending: (1) the trial court erred in granting a plea to the jurisdiction; (2) the trial court abused its discretion in striking Rodriguez's amended pleadings; and (3) the trial court abused its discretion in denying Rodriguez's motion for a continuance. We sustain Rodriguez's first two issues and overrule the third issue. The trial court's judgment is reversed, and the cause is remanded to the trial court for a new trial.


A primary election for the Democratic nomination for Congressional District 28 was held on March 9, 2004. Rodriguez was determined to be the winner of the primary election by 145 votes. After a recount was conducted at the request of Henry Cueller ("Cuellar"), Cueller was determined to be the winner by 203 votes.

On April 14, 2004, Rodriguez filed an original petition contesting the election. In his petition, Rodriguez detailed the change in the vote count during the recount from the early and mail-in boxes in Webb and Zapata Counties. Rodriguez noted that the net change in nine other counties was one vote in favor of Cuellar, whereas the net change in Zapata and Webb Counties was 347 votes in favor of Cuellar. Rodriguez alleged that "there were irregularities in casting, counting, and recounting of the votes in the election."

On April 20, 2004, Cuellar filed special exceptions, asserting that Rodriguez was required to plead particularized irregularities. Cuellar also filed a plea to the jurisdiction alleging the recount in Zapata County was correct; therefore, Rodriguez could not establish sufficient votes to change the outcome of the election.

On April 26, 2004, Rodriguez filed a motion to recount the ballots, alleging that there were irregularities in the counting and recounting of the ballots. In his brief in support of the motion, Rodriguez alleged that evidence existed that 115 extra ballots were tabulated in the recount of Webb County's vote than were tabulated in the original canvass.

On April 28, 2004, Rodriguez filed his first amended original petition. In the amended petition, Rodriguez asserted that over 100 persons cast ballots in the election who were not qualified to vote or who were not permitted to vote under Texas laws. The amended petition detailed eleven categories of unqualified voters.

Cuellar filed an amended plea to the jurisdiction asserting that the trial court's jurisdiction was limited to Rodriguez's allegation regarding the recount. Cuellar also filed a motion to strike the amended pleading, asserting that the allegation regarding the unqualified voters was a new cause of action which should be stricken as prejudicial on its face or otherwise resulted in surprise and prejudice.

On April 29, 2004, the trial court held a hearing on Cuellar's special exceptions and plea to the jurisdiction. At the hearing, the trial court mentioned that the trial date would be set for May 10th or May 11th, court space permitting.

On May 4, 2004, Rodriguez filed a second amended original petition. Also on May 4, 2004, the trial court concluded the hearing on the special exceptions and plea to the jurisdiction and conducted a hearing on the motion to recount and to inspect ballots. The trial court granted Cuellar's amended plea to the jurisdiction, striking the allegation that over 100 unqualified voters cast ballots. The trial court ordered that no evidence regarding the unqualified voter allegation would be admissible at trial. The trial court also granted Rodriguez's motion for recount and for inspection of ballots. After the recount was conducted on May 6th and 7th, Cuellar was shown to have received 145 fewer votes than were awarded him in the original recount. As a result of the judicial recount, Cuellar was left with only a 58 vote margin.

The case was called for trial on May 11, 2004. Rodriguez made an oral motion for continuance or trial recess, asserting that logistical problems prevented a proper inspection of the ballots. As a result, less than ten percent of the ballots were inspected in Webb County. The trial court granted Rodriguez permission to file a written motion for continuance but denied the motion. Rodriguez attached the affidavit of his attorney, Randall B. Wood, to his written motion for continuance. In the affidavit, Wood stated that Rodriguez's expert was present and ready to begin inspecting the Webb County ballots at 8:00 a.m. on Thursday, May 6, 2004; however, the ballots were not available for inspection until after lunch. Wood stated that Rodriguez's expert diligently conducted his inspection but was delayed by Cuellar's expert. Rodriguez's expert was required to wait until Cuellar's expert completed his inspection before moving on to another precinct, and Cuellar's expert took numerous breaks during which Rodriguez's expert was prevented from continuing his inspection. As a result, Rodriguez's expert was only able to inspect less than 10% of the ballots in Webb County from only three precincts. Based on the inspection, Rodriguez's expert detected 29 irregular ballots which was insufficient to overcome the 58 vote margin.

Based on the trial court's ruling on the plea to the jurisdiction and the denial of the motion for continuance, Rodriguez informed the court that he was unable to present evidence of a sufficient number of vote changes to alter the outcome of the election. Rodriguez stated, "due to the Court's overruling our motion for continuance or recess to continue that inspection, and due to the striking of our pleadings for over 300-and-some ballots that we would have introduced otherwise, at this point, the [Contestant] has no choice but to rest on appeal, and we so rest." As a result, the trial court denied the relief sought by Rodriguez.

Plea to the Jurisdiction

A. Standard of Review

Whether a trial court has subject matter jurisdiction is a question of law. Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de novo. Id. When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case. Id. We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227.

B. Jurisdictional Issue?

Rodriguez contends that the trial court erred in granting Cuellar's plea to the jurisdiction because the trial court's jurisdiction to consider his election contest was properly invoked and the amendment to his pleadings did not create a jurisdictional issue. First, Rodriguez contends that the 1985 amendments to the Texas Election Code eliminated the requirement that the contestant include a statement of the grounds of the contest in the petition. Second, Rodriguez contends that after the Texas Supreme Court's decision in Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000), the failure to establish a statutory prerequisite is no longer considered jurisdictional. Third, Rodriguez contends that facts that are omitted from pleadings cannot defeat a trial court's jurisdiction but only give rise to special exceptions. Finally, Rodriguez contends that the amendment to the pleadings was proper because he had stated a general claim based on irregular votes being cast in his original petition.

Cuellar responds that 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.). Cuellar further responds that although contestants in primary elections were permitted to amend their pleadings to add new claims from 1941 through 1985, the 1985 amendments eliminated this potential. Finally, Cuellar contends that Rodriguez erroneously relies on Dubai because election contests do not fall within the general jurisdiction of the district court.

When this court reached its decision in Tiller v. Martinez, the court relied on Jordan v. Norman, 711 S.W.2d 358, 359 (Tex. App.—Beaumont 1986, no writ), as support for the contention that the 30-day limit for filing a petition is jurisdictional and nonwaivable. However, in analyzing whether the trial court erred in allowing Martinez's petition to be amended, this court relied on Rule 63 of the Texas Rules of Civil Procedure and not on the earlier case law holding that article 9.03 of the former Texas Election Code contained a two-fold notice requirement that was mandatory and jurisdictional. See, e.g., Ortiz v. Thompson, 604 S.W.2d 443, 447 (Tex. App.—Waco 1980, no writ); Moore v. City of Corpus Christi, 542 S.W.2d 720, 722 (Tex. Civ. App.—Corpus Christi 1976, writ ref'd n.r.e.).

Interestingly, both parties rely on Gateley v. Humphrey,...

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