Tiller v. Martinez, 04-98-00121-CV

• Citation: 974 S.W.2d 769
• Decision Date: 29 May 1998
• Docket Number: No. 04-98-00121-CV,04-98-00121-CV
• Parties: 128 Ed. Law Rep. 1303 Travis C. TILLER, Appellant, v. Guadalupe T. MARTINEZ, Appellee.
• Court: Court of Appeals of Texas

Page 769

974 S.W.2d 769

128 Ed. Law Rep. 1303

Travis C. TILLER, Appellant, v. Guadalupe T. MARTINEZ, Appellee.

No. 04-98-00121-CV.

Court of Appeals of Texas,

San Antonio.

May 29, 1998.

Rehearing Overruled June 23, 1998.

J.G. Adami, Jr., Warburton, Adami, McNeill & Paisley, P.C., Alice, for Appellant.

Jaime Omar Garza, Law Offices of Jaime Omar Garza, Alice, for Appellee.

Before LOPEZ, STONE and DUNCAN, JJ.

OPINION

STONE, Justice.

FACTUAL AND PROCEDURAL BACKGROUND

On May 3, 1997, the Alice Independent School Board conducted an election for three places on its Board of Trustees. After final canvass conducted on May 13, 1997, Travis Tiller was declared the winner of Place 3. Tiller secured the seat by 15 votes, with 1,897 votes in his favor and 1,882 votes in favor of his opponent, Guadalupe Martinez.

On June 11, 1997, Martinez filed an original petition contesting the election results in the Martinez-Tiller race, but erroneously referred to it as the Place 2 race rather than the Place 3 race. Tiller filed an answer, which included a plea to the jurisdiction due to the incorrect statement regarding the specific place contested. On July 17, 1997, Martinez filed a supplemental petition correcting the error and stating that he challenged the election results for Place 3. The case proceeded to trial before Judge Fernando Mancias. At trial, Martinez contested the rejection of 108 mail-in ballots prior to the election. Martinez sought to have these ballots validated and counted by the trial court and the election results overturned. After both parties rested, Tiller argued generally that an additional 31 mail-in ballots should be invalidated because the ballots were sent to a post office box. Tiller offered these ballots into evidence during the presentation of his defense. The trial court held that 28 of the 108 rejected mail-in ballots were valid and should have been counted, and further held that Tiller failed to meet his burden of proof to find invalid the 31 counted ballots contested by him. Of the 28 validated mail-in ballots, 25 were in favor of Martinez, 2 were in favor of Tiller, and one was not in either party's favor. As a result, the trial court overturned the election results, with Martinez winning by a margin of 8 votes. Tiller appeals the trial court's judgment in five points of error.

ARGUMENT AND AUTHORITIES

To overturn an election, the contestant has the burden of proving by clear and convincing evidence that voting irregularities materially affected the election results. See Alvarez v. Espinoza, 844 S.W.2d 238, 242 (Tex.App.--San Antonio 1992, writ dism'd w.o.j.); Guerra v. Garza, 865 S.W.2d 573, 576 (Tex.App.--Corpus Christi 1993, writ dism'd w.o.j.). To prove that the outcome was materially affected, the contestant must show that illegal votes were counted or an election official prevented eligible voters from voting, failed to count legal votes, or engaged in other fraud, illegal conduct, or mistake. TEX. ELEC.CODE ANN. § 221.003 (Vernon 1986); Alvarez, 844 S.W.2d at 242.

If the contestant meets his burden of proof and the trial court can ascertain the true outcome of the election, it shall declare the outcome. However, if the trial court cannot ascertain the true outcome of the election, it must declare the election void. TEX. ELEC.CODE ANN. § 221.012 (Vernon 1986). The standard of review in an appeal from a judgment in an election contest is a determination whether the trial court abused its discretion. Guerra v. Garza, 865 S.W.2d at 576; Green v. Reyes, 836 S.W.2d 203, 208 (Tex.App.--Houston [14th Dist.] 1992, no writ); Guerra v. Pena, 406 S.W.2d 769, 773 (Tex.Civ.App.--San Antonio 1966, no writ).

Trial Court's Jurisdiction

In his first point of error, Tiller contends that Martinez's supplemental petition was untimely to challenge the election results of Place 3 because it was not filed until July 11, 1997, outside the statutory 30-day period. Although Tiller concedes that Martinez's original petition filed on June 11, 1997, was within the 30-day period, he contends that such filing was ineffective to challenge the election results of Place 3 because the petition stated that Martinez contested the election results of Place 2. Tiller contends that the supplementation of the original petition did not cure the nonwaivable jurisdictional time constraint because "election contests have been held to not be 'ordinary civil cases.' "

A contestant must file the petition in an election contest no later than the 30th day after the date the official result of the contested election is determined. TEX. ELEC.CODE ANN. § 232.008(b) (Vernon 1986). The 30-day limit is jurisdictional and is nonwaivable. Jordan v. Norman, 711 S.W.2d 358, 359 (Tex.App.--Beaumont 1986, no writ).

Except as otherwise provided, the rules governing civil suits in the district court apply to an election contest in the district court, including those rules pertaining to the amendments of pleadings. TEX. ELEC.CODE ANN. § 231.002 (Vernon 1986); Bailey v. Fly, 97 Tex. 425, 79 S.W. 299, 300-01 (1904). "Election contest pleadings may be amended like other cases although the Election Code provides a limitation of this right and of continuances in primary elections and elections requiring a run-off." David B. Brooks, COUNTY AND SPECIAL DISTRICT LAW § 11.23 (Tex.Prac.1986). Amendments, responses, and other like pleadings may be filed with the clerk at any time the filing of such instruments does not operate as a surprise to the opposing party. TEX.R. CIV. P. 63. A trial court has no discretion to refuse an amendment or supplementation under Rule 63 unless the opposing party presents evidence of surprise or prejudice, or an amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment. See id.; Hardin v. Hardin, 597 S.W.2d 347, 350-51 (Tex.1980).

Although the original petition incorrectly stated that Martinez contested the election outcome of Place 2, it named Martinez as the contestant and Tiller as the contestee and stated that the two opposed one another in the School Board election. Martinez's original petition pleaded facts sufficient to give notice of the grounds of his election contest, and the typographical error was cured by a subsequent supplemental petition filed within days of Tiller's plea to the jurisdiction of the court. Because the petition stated the grounds upon which Martinez contested the election and pleaded sufficient facts to give Tiller notice of such, it was sufficient to invoke the jurisdiction of the district court. The trial court did not err by denying Tiller's motion to dismiss for want of jurisdiction. Tiller's first point of error is overruled.

Introduction of Ballots into Evidence

Tiller argues that the trial court erred by denying his motion for directed verdict because Martinez failed to introduce into evidence the actual ballots. Tiller contends that without the actual ballots, the trial court could not have determined the true outcome of the election, and therefore it had no basis upon which it could overturn the election. Tiller contends that by failing to introduce the ballots into evidence, Martinez failed to meet his burden of proof that the election outcome was not the true outcome.

Tiller misconstrues Martinez's burden of proof to overturn the election by basing Martinez's ability to meet his burden solely on the introduction of the ballots themselves. An election may not be set aside without proof that the alleged violation of the Election Code materially affected the result. See Alvarez, 844 S.W.2d at 242. To overturn the election, Martinez was required to show that the outcome was not the true outcome either because illegal votes were counted, or because an election official prevented eligible voters from voting, failed to count legal votes, or engaged in other fraud or illegal conduct or made a mistake. TEX. ELEC.CODE ANN. § 221.003; Alvarez, 844 S.W.2d at 242. The tribunal has wide discretion to decide all matters necessary or proper to determine the contest's outcome, including whether the ends of justice require the reopening of ballot boxes and recounting the vote. See Slusher v. Streater, 896 S.W.2d 239, 242 (Tex.App.--Houston [1st Dist.] 1995, no writ).

Because Martinez was not required to introduce the actual ballots to satisfy his burden of proof, Tiller's argument fails. Tiller's second point of error is overruled.

Validation of Mail-in Ballots

Tiller's third point of error focuses on the 28 mail-in ballots validated and counted by the trial court. ¹ Tiller argues that Martinez failed to meet his burden of proof because Martinez failed to show that each of the voters was legally qualified in every respect and failed to show that each of the voters was eligible to vote by mail or that the ballots were properly cast. Tiller attacks the votes individually to establish the court's error in counting each.

Relying on Alvarez, 844 S.W.2d at 244-45, Martinez counters with argument that he was not required to prove the legal qualifications of each voter when the ballots were rejected for reasons unrelated to the voters' qualifications. Because all of the ballots were rejected for reasons other than the voters' qualifications, Martinez contends that he was not required to show that the voters were legally qualified to vote in every respect. Martinez argues that implicit in the application process to vote early by mail is clear and convincing evidence that each voter is legally qualified to vote.

When the contestant contends that the election judge rejected votes that should have been accepted, it has long been the rule to presume that each of the rejected ballots was cast by an illegal voter. See Garza v. Salinas, 434 S.W.2d 153, 154-55 (Tex.Civ.App.--San Antonio 1968, no writ); Guerra v Pena, 406 S.W.2d at 773-75; Guerra v. Ramirez, 364 S.W.2d 720, 723-24 (Tex.Civ.App.--San Antonio 1963, writ...