Speights v. Willis

Decision Date24 October 2002
Docket NumberNo. 09-02-192 CV.,09-02-192 CV.
Citation88 S.W.3d 817
PartiesB.E. "Slim" SPEIGHTS, Appellant, v. Bob WILLIS, Appellee.
CourtTexas Court of Appeals

Doug W. Ray, Randall B. Wood, Ray, Wood & Bonilla, LLP, Austin, for appellant.

Larry F. York, Scott K. Field, Keller & Field, LLP, Austin, for appellee.

Before WALKER, C.J., BURGESS and GAULTNEY, JJ.

OPINION

DAVID B. GAULTNEY, Justice.

B.E. "Slim" Speights contests the result of the 2000 election for Polk County Commissioner, Precinct 1. Speights claims over 5000 voters were not residents and were not properly registered. See TEX. ELEC. CODE ANN. § 11.002(5), (6) (Vernon Supp. 2002). After a bench trial on the merits conducted on April 29 and 30, 2002, the trial court declared Bob Willis the winner of the election.

THE RESIDENCY REQUIREMENT

We consider the residency issue first. "Residence" is defined in the Texas Election Code, in part as follows:

(a) In this code, "residence" means domicile, that is, one's home and fixed place of habitation to which one intends to return after any temporary absence.

(b) Residence shall be determined in accordance with the common-law rules, as enunciated by the courts of this state, except as otherwise provided by this code.

(c) A person does not lose the person's residence by leaving the person's home to go to another place for temporary purposes only.

(d) A person does not acquire a residence in a place to which the person has come for temporary purposes only and without the intention of making that place the person's home.

. . . .

TEX. ELEC.CODE ANN. § 1.015 (Vernon Supp.2002). Whether a person is a resident depends on the "circumstances surrounding the person involved and largely depends upon the present intention of the individual." Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex.1964). Volition, intention and action are all factors to be considered in determining residence. See id.; see also Slasher v. Streater, 896 S.W.2d 239, 243-44 (Tex.App.-Houston [1st Dist.] 1995, no writ).

The challenged voters are all members of a club referred to as the Escapees, and are largely full-time travelers; typically, the members own their own recreational vehicles (RVs) and travel around the country extensively. The club owns a 140-acre tract of land in Polk County, Texas called Rainbow's End. Rainbow's End includes 220 lots owned by members, and also has space for RV parking with or without electricity and water. The club provides services to its members, and has an adult day care center on the premises, a library, an activity center, a swimming pool, a club house and a mail-forwarding service.

On the grounds is a building identified as 101 Rainbow Drive, to which mail is delivered for members of the club. Several years ago, the United States Post Office, together with the club's owners, implemented a numbering system to facilitate mail delivery to the members. Mail is addressed to Rainbow Drive with a number assigned for each individual member. Members use these addresses on Texas driver's licenses and on voter registrations.

In his findings of fact, the trial judge found in part as follows:

19. Rainbow's End is a large community of over 140 acres with deeded lots, lease sites, RV parking sites, an activity center, a club house, a library, a pool, and an Adult Day Care Center.

20. Contestant Speights ran for and was elected County Commissioner of Polk County Precinct 1 in 1992 and 1996. Escapees members voted in those elections, as well, and Contestant Speights made no complaint about Escapees members' residency or their respective methods of registration. Contestant Speights actively campaigned for Escapees members' votes in the 2000 election, as well, and, indeed, received over 1,000 votes from voters voting in precincts 19 and 20.

21. Contestant Speights was County Commissioner in 1999, when Polk County submitted a preclearance package to the U.S. Department of Justice pursuant to the Voting Rights Act. At that time, there were too many Escapees registered to vote in one voting precinct. The County decided to split these voters, which the County recognized as legal residents, into two voting precincts by their assigned PMB numbers, with voters whose addresses contained oddnumbered PMBs placed in voting precinct 19 and those with even-numbered PMBs placed in voting precinct 20. Contestant Speights, as County Commissioner, signed off on and approved this preclearance package.

At the time of the 2000 election, 6,000 members were registered to vote in Polk County, and the county divided the voters between two precincts by whether they had odd or even PMB numbers.

Only eight voters testified at trial; each described his or her individual circumstances. Some described little contact with Polk County. Daniel Topping testified to being registered to vote in Polk County. He and his wife own an RV lot in Arizona, and he testified to receiving mail at Mesa, Arizona. He has never been to Polk County. Muriel Ripley first registered as a Polk County voter and obtained her Texas driver's license in 1999. She was last in Polk County in April, 2000. Joseph Beador and Judith Beador own a summer home and an RV lot in California. The Beadors are registered voters in Polk County. He testified that neither of them have ever been to Rainbow's End.

Other voters testified to considerable contacts with Polk County and Rainbow's End, and to their actions and intentions to make their residence there. Janet Hildebrandt has been a full-time RV'er since 1991, and an Escapees member since 1994. She and her husband moved their residence to Rainbow's End in 1995, and in Polk County they registered their vehicle, registered to vote, joined a church and participated in community activities. She stopped traveling and settled permanently at Rainbow's End in June, 2000, after her husband had a stroke. She obtained a five-year lease at Rainbow's End with an option to extend.

Wayne and Audrey Quigle became fulltime RV'ers upon Wayne's retirement in 1994. Wayne's driver's license address is 137 Rainbow Drive, No. 3722. The Quigles engage in volunteer mission work while traveling about the country. They moved to Texas to get away from the cold. One of their daughters lives in Texas. They were aware of the adult care center at Rainbow's End and considered it the best option if they needed to stop traveling and obtain care. When in town, they attend First Methodist Church. A local attorney drafted their will designating an administrator in Texas. Mr. Quigle testified they have a bank account in Polk County and they pay taxes in Polk County. On the clay Mr. Quigle testified before the trial judge in this case, Mrs. Quigle was serving jury duty in Polk County.

Wendy Melinger has been an Escapees member since 1994, and a full-time RV'er since 1998. She maintains her bank and investment accounts in Texas, and pays many of her bills through the Escapees Club in Polk County. She comes to Polk County at least once, twice some years, in the spring and the fall. She considers Texas her home. Her Texas driver's license shows her address as 101 Rainbow Drive. Her vehicles are registered in Polk County. She votes in local elections in Polk County. She testified that she loves the area and "would like to have a place at Rainbow's End" when she stops being a full-time RV'er, although she "can't know for sure."

Jacqueline Morris, a retired nurse, moved to Polk County in 1999. Her address is 235 Rainbow Drive, No. 13536. She has served jury duty in Polk County. She has a Texas driver's license, is a member of a local church and has four bank accounts in Polk County. Her lawyer, accountant, veterinarian and doctors are all in Polk County. She insists that all medical tests be done at the Livingston Hospital in Polk County. She intends to live in Polk County when she is required to "hang up the keys."

Residency depends on the circumstances surrounding the individual voter. See Slusher, 896 S.W.2d at 243-44. While the Rainbow's End members have a common means of having their mail delivered, this by itself is not determinative of residency. The evidence at trial established that some of the voters who testified have significant ties to Polk County, and by their actions, decisions and intentions have established residency in Polk County at Rainbow's End. In contrast, some voters testified they had never been to Rainbow's End in Polk County. Other than the eight who testified at trial, however, the trial court was presented with no evidence of the individual circumstances, volition, intention and actions of the more than 5000 voters attacked by contestant.

The trial court properly found that "[c]ontestant has not offered proof of a sufficient number of individual voter's volition, intention, or actions with regard to his or her residence for voting purposes." The trial court found that Willis won the election "by a margin of 5,822 votes to 3,065 votes, a difference of 2,757 votes." Declared election results are to be upheld unless there is clear and convincing evidence of an erroneous result. See Price v. Lewis, 45 S.W.3d 215, 218 (Tex.App.-Houston [1st Dist.] 2001, no pet.). The trial court correctly concluded that Speights did not meet his burden of proving violations of the Election Code that materially affected the election. See generally Price, 45 S.W.3d at 218.

REGISTRATION

We next consider the registration challenge. Speights challenged the address descriptions on voter registration applications filed by over 5,000 voters. The trial court concluded that the voters at issue met the requirements of Section 13.002(c)(7), which provides that a registration application must include "the applicant's residence address or, if the residence has no address, the address at which applicant receives mail and a concise description of the location of the applicant's residence[.]" See TEX. ELEC.CODE ANN. § 13.002(c)(7) (Vernon Supp.2002). The...

To continue reading

Request your trial
3 cases
  • Mcduffee v. Miller
    • United States
    • Texas Court of Appeals
    • October 28, 2010
    ...return after any temporary absence.” Id. Factors considered in determining residence include volition, intention, and action. Speights v. Willis, 88 S.W.3d 817, 819 (Tex.App.-Beaumont 2002, no pet.). When a person's statements regarding residence are inconsistent with the facts showing actu......
  • Woods v. Legg
    • United States
    • Texas Court of Appeals
    • August 11, 2011
    ...presence or absence and those tending to show that the person is likely to remain at or return to the alleged residence. See Speights v. Willis, 88 S.W.3d 817, 819 (Tex.App.-Beaumont 2002, no pet.) (“Whether a person is a resident depends on the circumstances surrounding the person involved......
  • In re Appeal of Demoss, (2003)
    • United States
    • Judicial App Tribunal Court Cherokee Nation
    • March 12, 2003
    ...live in Recreational Vehicles (RV) could meet the residency and registration requirements under the state election code. Speights v. Willis, 88 S.W.3d 817 (Tex.App.2002). Under the Texas Election code, like the Cherokee "residence" means domicile, or one's home and fixed place of habitation......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT