Slusher v. Streater, 01-94-01058-CV

• Citation: 896 S.W.2d 239
• Decision Date: 19 January 1995
• Docket Number: No. 01-94-01058-CV,01-94-01058-CV
• Parties: Barbara SLUSHER, Appellant, v. Sylvia STREATER, Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 239

896 S.W.2d 239

Barbara SLUSHER, Appellant, v. Sylvia STREATER, Appellee.

No. 01-94-01058-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 19, 1995.

Rehearing Overruled March 30, 1995.

William E. King, Kemah, for appellant.

George W. Vie, III, Galveston, for appellee.

Before COHEN, HEDGES and WILSON, JJ.

OPINION

WILSON, Justice.

This is an accelerated appeal in an election contest. Appellant, Barbara Slusher, the defeated candidate in the May 7, 1994 election for Kemah city council, appeals from a judgment declaring that election valid because an insufficient number of illegal votes were cast in the election to affect its outcome. We affirm.

Slusher was a candidate for the office of city council, position five, in Kemah. Streater, the incumbent, won the election by a margin of nine votes according to the final canvass. The total votes cast were 435. Two days after the election, Slusher filed suit contending that certain voters voted illegally because they were not Kemah residents. She requested in her petition an inspection of the ballots under the supervision of the trial court.

The trial court ordered the ballots be delivered to the court for inspection at a pretrial status conference. An inspection and recounting of the ballots showed that Streater won the election by 11 votes, rather than nine votes. The contest was tried to the bench. The trial court found that, of the 18 votes Slusher challenged, eight were illegal and 10 were legal. Using the 11 vote margin of victory, the trial court found that the number of illegal votes cast did not equal or exceed the margin of victory. Thus, the number of illegal votes did not affect the election result.

Election contest

In an election contest, the contestant has the burden of proving that voting irregularities were present and that they materially affected the elections results. Guerra v. Garza, 865 S.W.2d 573, 576 (Tex.App.--Corpus Christi 1993, writ dism'd w.o.j.). The contestant must prove that illegal votes were cast in the election being contested and that a different and correct result would have been reached by not counting the illegal votes. Green v. Reyes, 836 S.W.2d 203, 208 (Tex.App.--Houston [14th Dist.] 1992, no writ); Medrano v. Gleinser, 769 S.W.2d 687, 688 (Tex.App.--Corpus Christi 1989, no writ). The standard of review in an appeal from a judgment in an election contest is whether from the record it appears that the trial court abused its discretion. Guerra, 865 S.W.2d at 576; Green, 836 S.W.2d at 208.

The Election Code provides the procedure by which a trial court can ascertain the true outcome of the contested election. Section 221.009 provides that if the number of illegal votes is equal to or greater than the number of votes necessary to change the outcome of an election, the court may declare the election void without attempting to determine how each voter voted. TEX.ELEC.CODE ANN. § 221.009(b) (Vernon 1986). A voter who cast an illegal vote may be compelled to disclose the name of the candidate for whom he or she voted. TEX.ELEC.CODE ANN. § 221.009(a) (Vernon 1986). If the court can ascertain the candidate for which an illegal vote was cast, it must subtract the vote from the official total for the candidate. TEX.ELEC.CODE ANN. § 221.011(a) (Vernon 1986).

After following this procedure, if the court can ascertain the true outcome of the election, the court shall declare the outcome. TEX.ELEC.CODE ANN. § 221.012(a) (Vernon 1986). If not, the court shall declare the election void. TEX.ELEC.CODE ANN. § 221.012(b) (Vernon 1986).

Validity of judicial recount

In point of error one, Slusher contends the trial court erred in disregarding the official canvass and basing the difference in the election outcome on an unofficial recount.

The election result as shown by the final canvass showed Streater received 222 votes and Slusher received 213 votes. The final canvass showed that Streater won the election by a margin of nine votes. Slusher's petition requested the trial court inspect the ballots cast in the election. The trial court granted Slusher's request and ordered the ballots be brought to the trial court for an inspection at a status conference. There is no record of the status conference. The trial court's findings of fact and conclusions of law provide that the inspection occurred in open court with the Kemah city secretary present. The city secretary announced that the results of the recount showed Streater received 223 votes and Slusher received 212. Streater's margin of victory was thus 11 votes instead of 9 votes. The findings of fact also provide that neither candidate requested a recount under the Election Code.

At the conclusion of trial, Slusher made the same argument to the trial court as she does here:

[SLUSHER'S ATTORNEY]: The final canvass, as shown in the testimony in this case, was 222 to 213. A difference of nine votes. The only way that can be different, if there's an official recount and there was no official recount ever called for in this case and, therefore, the difference that we're dealing with is nine votes.

....

[THE COURT]: Excuse me. I thought you were the one who requested the voter recount?

[STREATER'S ATTORNEY]: He did.

[SLUSHER'S ATTORNEY]: I requested an inspection of the ballots. If you recall, there were a number of ballots that were marked in various ways, and we couldn't figure out exactly how the voting clerk had come up with the tallies or which-- [THE COURT]: My impression was that you wanted a recount of the votes.

[SLUSHER'S ATTORNEY]: But there is a very long procedure in the election code for recounts, and it has to be done by--

[THE COURT]: I just want to clarify that because--

[SLUSHER'S ATTORNEY]: We asked for--

[THE COURT]: You were the one that motivated all this recounting.

[SLUSHER'S ATTORNEY]: Yes. But anyway, the case law is very clear. This has to be based on the final canvass.

Slusher argues that the Election Code provides specific procedures for recounts; absent these recount procedures, there is no authority for varying the official canvass. See TEX.ELEC.CODE ANN. § 212.001 (Vernon Supp.1995). We disagree.

Section 221.003(a) of the Election Code provides that the tribunal hearing an election contest shall attempt to ascertain whether the outcome of the contested election, as shown by the final canvass, is not the true outcome because, among other reasons, illegal votes were counted or an election officer or other person officially involved in the administration of the election made a mistake. TEX.ELEC.CODE ANN. § 221.003(a) (Vernon 1986). Section 221.008 of the Election Code provides in relevant part that "[a] tribunal hearing an election contest may cause secured ballot boxes ... used in the election to be unsecured to determine the correct vote count or any other fact that the tribunal considers pertinent to a fair and just disposition of the contest." TEX.ELEC.CODE ANN. § 221.008 (Vernon 1986).

Thus, in an election contest, the trial court is vested with wide discretion in determining all matters necessary or proper to determine the contest's outcome, including whether the ends of justice require the opening of the ballot boxes and a recount of the ballots. Guerra, 865 S.W.2d at 578; Villarreal v. Hedrick, 579 S.W.2d 41, 45-46 (Tex.Civ.App.--Corpus Christi 1979, writ dism'd); Little v. Alto Indep. Sch. Dist., 513 S.W.2d 886, 892 (Tex.Civ.App.--Tyler 1974, writ dism'd). We will not overturn the trial court's decision to do so unless a clear abuse of discretion on a material issue is shown. Id.

There is no record from the status conference. Thus there is nothing in the record showing that Slusher objected to a recount of the ballots during the inspection. There is statutory authority allowing the trial court to open the ballot boxes and recount the votes in an election contest. TEX.ELEC.CODE ANN. § 221.008. That is what occurred here. We find the record does not show the trial court abused his discretion.

Slusher argues that the trial court must use the results of the final canvass to ascertain the true outcome of the election. She relies on cases citing section 221.003 of the Election Code. Green, 836 S.W.2d at 208; Alvarez v. Espinoza, 844 S.W.2d 238, 242 (Tex.App.--San Antonio 1992, writ dism'd w.o.j.). Section 221.003 provides that the court shall attempt to ascertain whether the outcome of the contested election, as shown by the final canvass, is not the true outcome. Here the trial court did just that. An inspection of the ballots showed that the outcome of the final canvass was not the true outcome because there was a mistake in the counting of the ballots and because some votes were cast illegally. We do not find the authority cited by Slusher prevents the trial court from using the result of a recount in determining the true outcome of the election. ¹

We overrule point of error one.

Legality of votes

In the next three points of error, Slusher attacks the trial court's findings of fact that 10 voters challenged by Slusher voted legally. Standard of review

In nonjury cases in which both findings of fact and a statement of facts have been filed, we must review the sufficiency of the evidence under the same standards utilized for jury tried cases. Green, 836 S.W.2d 203; Stern v. Wonzer, 846 S.W.2d 939, 942 (Tex.App.--Houston [1st Dist.] 1993, no writ). In reviewing the legal sufficiency of the evidence, we consider only the evidence and inferences that, when viewed in their most favorable light, tend to support the finding, and disregard all evidence and inferences to the contrary. Stern, 846 S.W.2d at 942. If there is any evidence of probative force, we must overrule the point and uphold the finding. Id.

In reviewing the factual sufficiency of the evidence, we examine all of the evidence, both the evidence that supports the finding and the evidence that controverts the finding. Stern, 846 S.W.2d at 942. We will set aside...