Rodriguez v. Thompson

• Decision Date: 04 October 1976
• Docket Number: No. 6577,6577
• Citation: 542 S.W.2d 480
• Parties: Manuel (Manny) RODRIGUEZ, Appellant, v. Richard D. (Rick) THOMPSON, Appellee.
• Court: Texas Court of Appeals

Page 480

542 S.W.2d 480

Manuel (Manny) RODRIGUEZ, Appellant, v. Richard D. (Rick) THOMPSON, Appellee.

No. 6577.

Court of Civil Appeals of Texas,

El Paso.

Oct. 4, 1976.

Luis M. Segura, San Antonio, Alexander R. Gonzalez, Fort Stockton, for appellant.

Shafter, Gilliland, Davis Bunton & McCollum, Inc., Lucius D. Bunton, Odessa, for appellee.

OPINION

PER CURIAM.

This is an election contest involving the naming of the Democratic nominee for Sheriff of Presidio County. The trial Court determined that the Appellee received 999 legal votes and the Appellant 994 legal votes. We affirm after having reduced Appellee's count by two votes.

The trial Court disallowed 21 votes cast for Appellant and 12 votes cast for Appellee. The Appellant complains here only as to 6 of his votes which were disallowed. Five of these were disallowed because the voters lived with their families in Mexico and were determined not to be residents of Presidio County. His main complaint and 16 of his 21 points of error are with regard to votes counted for Appellee which he challenges.

The Appellee has presented a Motion to Dismiss for Want of Jurisdiction contending that the appeal was not timely perfected. Following the trial, the Presiding Judge signed a judgment in El Paso on June 28, 1976, which was filed with the District Clerk the next day. Article 13.30(11) of the Election Code ¹ requires that notice of appeal and an appeal bond be filed within five days after the contest is decided. Appellant contends since July 4 was on a Sunday and was a holiday, under Article 342--910a, Tex.Rev.Civ.Stat., Monday, July 5, was a holiday and that the filing on Tuesday, July 6, was timely. He relies upon Blackman v. Housing Authority of the City of Dallas, 152 Tex. 21, 254 S.W.2d 103 (1953). The holding in that case does not now apply for the reasons set forth in Suarez v. Brown, 414 S.W.2d 537 (Tex.Civ.App. Corpus Christi 1967, writ ref'd). Thus, we conclude that the notice and bond were not timely filed.

On July 12, 1976, Appellant filed a 'Motion to Correct and Amend Judgment.' After a hearing, the trial Court entered an order vacating the first judgment, and on July 15, 1976, entered a judgment which did not change the results but did take one more vote from those originally counted for Appellant and changed a recital as to the name of the office of the nominee from 'Sheriff, Tax Assessor-Collector' to 'Sheriff', for reasons hereinafter noted. After this judgment, timely notice of appeal and an appeal bond were filed by Appellant. The Appellee urges that the trial Court lost jurisdiction once the first judgment was entered and that this Court has no jurisdiction because timely procedures were not used to appeal from the first judgment. Although an election contest is a statutory procedure and Article 13.30(11) does provide for certification of results if no appeal is perfected in five days, we find nothing in the Election Code which terminates the trial Court's jurisdiction over its judgment before the end of a period of thirty days. First State Bank and Trust Company of Port Lavaca v. Vector Corporation, 427 S.W.2d 958 (Tex.Civ.App. Waco 1968, writ ref'd n.r.e.). In view of the entry of the second judgment, we conclude that Bailey v. Clark, 407 S.W.2d 520 (Tex.Civ.App. Fort Woth 1966, no writ), is not controlling. The motion to dismiss is overruled.

The Appellant initially contends that the trial Court erred in assuming jurisdiction because the notice for the contest as required by Article 9.03 was invalid. This provision of the law requires a contestant to give notice to 'any one holding a certificate of election for any office * * *.' In this case, the notice referred to the 'nomination in the Democratic Primary for Sheriff of Presidio County, Texas * * *.' Appellant urges that under Article 8, Sec. 16 of the Texas Constitution, the office is that of Sheriff, Tax-Assessor and Collector and no notice was given to contest the office as stated in the Constitution. We conclude that under Article 5, Sec. 23 of the Constitution, there is the office of 'Sheriff', and the duties of Tax-Assessor and Collector which are added by the subsequent Article do not change the office from that of 'Sheriff'. In fact, Article 8, Sec. 16 recognizes the position of 'The Sheriff of each county, * * *.' Also see Article 6865, Tex.Rev.Civ.Stat., which provides:

'The qualified voters of each county at each general election shall elect one sheriff for a term of two years.' ²

Appellant also urges that the notice is insufficient because it fails to state who the contested voters actually voted for in the primary election. We conclude that the notice which incorporated the petition and the grounds as set forth therein was sufficient where the petition did specifically state the grounds upon which each designated vote was to be contested. Point of Error Number One is overruled.

Appellant next asserts that the trial Court erred in excluding the affidavit of Nancy Fowlkes wherein an issue was raised as to her residence being outside Presidio County. The evidence supports the trial Court's finding that under Article 5.08(i) this young single lady who teaches in San Antonio and temporarily resides there is a permanent resident of Presidio County. Article 13.30(7) gives the trial judge wide discretion as to the admissibility of evidence, and we cannot say such discretion was abused in excluding the ex parte affidavit where no attempt was made to obtain the evidence by deposition, and no reason was given for not obtaining such evidence except in an ex parte procedure. Jarrell v. Smith, 360 S.W.2d 825 (Tex.Civ.App. Beaumont 1962, writ dism'd). Point of Error Number Two is overruled.

The Appellant contends the trial Court erred in holding that Charles E. Shannon was a qualified voter in Presidio County. He is a U.S. Magistrate who resides in the Big Bend National Park. He owns a house in Marfa where he lived before becoming a U.S. Magistrate, and which he declares as his homestead. He has a bank account there, and has his car registered in Presidio County. Under Article 5.08(i), the residence of Mr. Shannon, as a government employee, is construed to be where his home was before he became such employee. Point of Error Number Three is overruled.

The next point asserts that Nancy Fowlkes and Gladys Jean Christopher, school teachers, and Carol Cross, a State employee, all of whom presently reside outside of Presidio County, are not qualified voters. Each of these young ladies graduated from high school in Marfa and left the County to attend college and then took jobs with governmental agencies. All have families in Presidio County, all have their cars registered there, and they only rent places where they presently live and work. We believe the evidence supports the trial Court's findings under Article 5.08(i) that they are residents of Presidio County, and that the provision of 5.08(e) which makes a person's residence where he usually sleeps at night, is not absolute and controlling where there is no indication of an intent to abandon the long residence in the County where they voted. Point of Error Number Four is overruled.

The fifth point attacks the trial Court finding that Jerry Lumm and Jeannette Lumm were qualified voters in Presidio County. They apparently moved out of the County about the time of the election. Mr. Lumm voted absentee on the grounds that he would be out of the County on election day. Mrs. Lumm did vote in person, after having earlier applied for an absentee ballot. The absence ballot was returned unmarked after the election. There was evidence that the utilities were turned off in their house the day before the election, and that they now live in Alice, Texas. There was no testimony as to exactly when they moved. Mrs. Lumm obviously was present to vote on May 1, 1976, and had not left the County at that time. There being no conclusive evidence of their actual moving prior to the date of the election, the challenge cannot be sustained. Point of Error Number Five is overruled.

The next point alleges that Captain Daniel Dunlap and his wife, Ann Christopher Dunlap, were not qualified voters. Daniel and Ann were married while students at Texas A & M. Daniel was from Amarillo and Ann from Presidio County. He received his commission in the Air Force immediately upon graduating, and has been in the service ever since, being stationed in Florida at the present time. They do not own any property, and have always rented a place where he has been stationed. While he was overseas, Ann stayed with her parents in Presidio County. They have spent time with both of their parents while on furlough, but always voted in Presidio County since their marriage several years ago. Under Article 5.08(i), as an officer of the United States his residence is where his home was before he became such officer, unless he has become a bona fide resident of the place where he is in government service or some other place. The evidence supports the trial Court finding that he established his residence in Presidio County and was qualified to vote there. Under Article 5.08(h), the residence of a married woman is considered to be the place where her husband has his residence. Since Ann has returned to her home during the times her husband was overseas, we conclude that she remains a resident of Presidio County . We overrule Point of Error Number Six.

The following point attacks the vote of Mrs. Ronnie (Cherry) Webb, contending she was not a registered voter in Presidio County. Mrs. Webb testified that her husband was a resident of the County. He had divorced his prior wife, Toni, and married Cherry in January, 1976. She moved from Alpine to Presidio County in February, 1976. She received in the mail a voter registration, although acknowledging that she did not register to vote and her husband testified he did not register her. There was no way to tell whether the registration...