Serna v. Enriquez, 1153

• Decision Date: 30 December 1976
• Docket Number: No. 1153,1153
• Citation: 545 S.W.2d 281
• Parties: Alfredo SERNA and Juan D. Sandoval, Jr., Appellants, v. Abraham ENRIQUEZ and V. (Bene) Figueroa, Jr., Appellees.
• Court: Texas Court of Appeals

Page 281

545 S.W.2d 281

Alfredo SERNA and Juan D. Sandoval, Jr., Appellants, v.Abraham ENRIQUEZ and V. (Bene) Figueroa, Jr., Appellees.

No. 1153.

Court of Civil Appeals of Texas Corpus Christi.

Dec. 30, 1976.

Gerald H. Beckman, Huerta, Pena, Beckman, Rodriguez & Alfaro, Corpus Christi, for appellants.

Frank W. Nesbitt, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellees.

OPINION

BISSETT, Justice.

This is an election contest.Alfredo Serna and Juan D. Sandoval, Jr. filed an election contest on May 3, 1976, wherein they sought to be declared 'the winners' in the election which was held by the Robstown Independent School District on April 3, 1976 to elect trustees for places 6 and 7 on the school board.Trial, which began on June 3, 1976, was to the court without a jury.Judgment was rendered on June 4, 1976 that Serna and Sandoval take nothing by their 'election contest'.Serna and Sandoval have appealed.

The contestants alleged, in substance, that: 1) the candidates for place 6 were Sandoval and V. (Bene) Figueroa, and the candidates for place 7 were Serna and Abraham Enriquez; 2) a total of 4,392 votes were cast in the election for place 6, with Figueroa receiving 2,338 votes and Sandoval receiving 2,054 votes; 3) a total of 4,292 votes were cast in the election for place 7, with Enriquez receiving 2,286 votes and Serna receiving 2,006 votes; 4) pursuant to the canvass of the results of the election by the school board on April 20, 1976, Figueroa was found to have won the election for place 6 by 284 votes and Enriquez was found to have won the election for place 7 by 280 votes; 5) 551 of the 612 absentee votes in the election were illegally cast, should be disregarded and the election results determined without counting them.

The contestants concluded:

'When the invalid returns are tabulated without the invalid absentee votes, Contestants will be shown with certainty to have won the election.'

The contestants' sole contention on appeal is that the trial court erred in not disregarding improperly cast votes in the school board election contest since such was required by mandatory provisions of the Texas Election Code.The contention cannot be sustained.

It was stipulated by the parties: 1) the absentee ballots totalled 612 votes, with 20 votes being cast by mail and 592 votes cast by personal appearance of the voters who voted by use of voting machines; 2) the 20 'mail-in' absentee votes are not contested; 3) the clerk for absentee voting permitted 551 of the persons who voted absentee by personal appearance to cast their ballots upon an informal oral application and not upon a written application; 4) about 1:00 o'clock p.m. on the last day for absentee voting, the clerk, following a suggestion that she should require written applications for all persons who applied to vote absentee by personal appearance, required the remaining voters (41) who presented themselves for voting by absentee ballot to sign a written application therefor; 5) those 41 votes are not challenged in this election contest; 6) the 551 votes of those who voted absentee without signing a written application were counted; 7) mathematically, had the 551 votes not been counted, the contestants would have won the election for places 6 and 7, respectively.

Tex. Election Code Ann. art. 5.05 was amended by the legislature in 1975, effective September 1, 1975.Subdivision 1(b) thereof provides that absentee voting may be conducted by: 1) voting by personal appearance, and 2) voting by mail.When the voting is by mail, the requirements are mandatory since the legislature expressly provided that 'the ballot shall not be counted' in all situations where there was a violation of Subdivision 1(c), (i), (ii), (iii) or (iv) thereof.That is not the case where the voter votes absentee by personal appearance.

Subdivision 2(a) of Tex. Election Code Ann. § 5.05(Supp.1976), as amended in 1975, provides:

'a) A voter desiring to vote absentee shall make written application for an official ballot to the county clerk of...