Woods v. Legg

• Decision Date: 11 August 2011
• Docket Number: No. 01–10–00888–CV.,01–10–00888–CV.
• Parties: Tarris WOODS, Appellant, v. Rusty LEGG, Appellee.
• Court: Texas Court of Appeals

363 S.W.3d 710

Tarris WOODS, Appellant,

v.Rusty LEGG, Appellee.

No. 01–10–00888–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Aug. 11, 2011.

Anthony P. Griffin, Anthony P. Griffin Inc., Galveston, TX, for Appellant.

Barbara Elliott–Roberts, William S. Helfand, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, TX, for Appellee.

Panel consists of Justices JENNINGS, BLAND, and MASSENGALE.

OPINION

JANE BLAND, Justice.

Tarris Woods, who had been an incumbent Galveston City Councilmember, lost a close runoff election to Rusty Legg. Woods brought an election contest under section 221.003 of the Texas Election Code, challenging the vote count on the grounds that officials prevented eligible voters from voting, failed to count legal votes, or engaged in other fraud, illegal conduct, or mistake. See Tex. Elec.Code Ann. § 221.003 (West 2010). Following a bench trial, the trial court denied the contest, entered findings of fact and conclusions of law, and confirmed that the election results declaring Rusty Legg the winner.

On appeal, Woods challenges the trial court's ruling, claiming that it erred in refusing to order a new election. He contends that he presented clear and convincing evidence that (1) election officials mistakenly assigned some District 1 residents to districts outside of the voting area and (2) officials erred in preventing eligible voters from casting their votes in his favor. We conclude that the trial court did not abuse its discretion in rejecting the challenge because sufficient evidence supports its findings. We therefore affirm.

Background

The general election for District 1 Galveston city councilmember took place in November 2009. A little more than a year before, Hurricane Ike had devastated the island and displaced many of its residents. Particularly hard-hit were lower-income residents who lived in public housing or rental properties. Many of these residents lived in District 1, located on the eastern side of the island. Although Woods and Legg were the top two vote-getters in the November contest, neither commanded a majority of the vote, and thus a run-off election became necessary.

The June 19, 2010 runoff vote resulted in 209 votes for Legg and 200 votes for Woods, including one provisional ballot counted for Woods. During the bench trial, the trial court heard evidence from witnesses who, according to Woods, were aggrieved voters and from Galveston County Tax Assessor–Collector and Voter Registrar Cheryl Johnson. Following the presentation of evidence, the trial court confirmed the certified election results in favor of Legg as the true outcome of the election.

Discussion

I. Burden of Proof and Standard of Review

An election contest is a special statutory proceeding that provides a remedy for elections tainted by fraud, illegality or other irregularity. Blum v. Lanier, 997 S.W.2d 259, 262 (Tex.1999); Tex. Elec.Code Ann. §§ 233.003–233.014 (West 2010). It “includes any type of suit in which the validity of an election or any part of the elective process is made the subject matter of the litigation.” Rossano v. Townsend, 9 S.W.3d 357, 362 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

To set aside the outcome of the runoff election, Woods bore a burden to prove by clear and convincing evidence that violations of the Election Code materially affected the election's outcome. Price v. Lewis, 45 S.W.3d 215, 218 (Tex.App.-Houston [1st Dist.] 2001, no pet.); Olsen v. Cooper, 24 S.W.3d 608, 610 (Tex.App.-Houston [1st Dist.] 2000, no pet.); Slusher v. Streater, 896 S.W.2d 239, 241 (Tex.App.-Houston [1st Dist.] 1995, no writ). An outcome of an election is “materially affected” if a different and correct result would have been reached in the absence of Election Code violations. Olsen, 24 S.W.3d at 610. The clear and convincing standard requires more proof than the preponderance of the evidence standard in ordinary civil cases, but less than the reasonable doubt standard in criminal cases. Id.; In re K.C.M., 4 S.W.3d 392, 395 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). This standard is the degree of proof that produces in the factfinder a “firm belief or conviction” as to the truth of the allegations sought to be proved. K.C.M., 4 S.W.3d at 395.

With this burden in mind, we review the record in an election contest to determine whether the trial court abused its discretion. Price, 45 S.W.3d at 218. We “look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 265–66 (Tex.2002). We disregard “all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” Id. at 266. We cannot, however, disregard contrary evidence that the factfinder could not ignore. City of Keller v. Wilson, 168 S.W.3d 802, 817, 830 (Tex.2005).

In a bench trial, the trial court determines the credibility of the witnesses and the weight to be given their testimony. Woods v. Woods, 193 S.W.3d 720, 726 (Tex.App.-Beaumont 2006, pet. denied); see also City of Keller, 168 S.W.3d at 819. In resolving factual disputes, the trial court may believe one witness and disbelieve others, and it may resolve any inconsistencies in a witness's testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). In making these credibility determinations, the factfinder “cannot ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted.” City of Keller, 168 S.W.3d at 820. However, if the factfinder could reasonably believe the testimony of one witness or disbelieve the testimony of another witness, an appellate court “cannot impose [its] own opinions to the contrary.” Id. at 819.

II. Election ContestA. Governing statute

Under section 221.003 of the Texas Election Code:

(a) The tribunal hearing an election contest shall attempt to ascertain whether the outcome of the election contest, as shown by the final canvass, is not the true outcome because:

(1) illegal votes were counted; or

(2) an election officer or other person officially involved in the administration of the election:

(A) prevented eligible voters from voting;

(B) failed to count legal votes; or

(C) engaged in other fraud or illegal conduct or made a mistake.

Tex. Elec.Code Ann. § 221.003. A contestant may prove the need for a recall election either by showing that individual voters—in a number that would change the outcome of the election—cast legal votes for the contestant that were not counted, or by showing that the illegal votes (or the improperly prevented votes) exceed the margin of victory. See Tex. Elec.Code Ann. §§ 221.003(a)(2)(A), 221.009 (West 2010); Miller v. Hill, 698 S.W.2d 372, 375 (Tex.App.-Houston [14th Dist.] 1985), writ dism'd, 714 S.W.2d 313 (Tex.1986).

B. Voter eligibility

1. Residence

The resolution of this appeal, in large part, turns on the meaning of the term “residence.” The Texas Election Code defines “residence” as “one's home and fixed place of habitation to which one intends to return after any temporary absence.” Tex. Elec.Code Ann. § 1.015(a) (West 2010). The determination of residence must accord “with the common-law rules, as enunciated by the courts of this state, except as otherwise provided by this code.” Tex. Elec.Code Ann. § 1.015(b). The Election Code further provides that: “A person does not lose the person's residence by leaving the person's home to go to another place for temporary purposes only.” Tex. Elec.Code Ann. § 1.015(c). Conversely, “[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(d).

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). The determination of residence for voting purposes centers on both the person's expression of intent to remain at, or return to, the alleged residence, as well as the circumstances that led to their 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 and largely depends upon the present intention of the individual.”) (internal quotation omitted). “Volition, intention, and action are all elements to be considered in determining where a person resides, and such elements are equally pertinent in denoting the permanent residence or domicile.” Slusher, 896 S.W.2d at 244. Conduct such as where a person sleeps and keeps personal belongings may support factors such as presence and intent. Mills, 377 S.W.2d at 637. One element alone is insufficient to establish residency; the elements must form a nexus to fix and determine a residence. Id.

When a person's statements regarding residence are inconsistent with other evidence showing actual residence, “such statements ‘are of slight weight’ and cannot establish residence in fact.” In re Graham, 251 S.W.3d 844, 850 (Tex.App.-Austin 2008, no pet.) (quoting Texas v. Florida, 306 U.S. 398, 424, 59 S.Ct. 563, 576, 83 L.Ed. 817 (1939)). On appeal, we are limited to determining whether the trial court's credibility determinations were reasonable. See City of Keller, 168 S.W.3d at 819–20; McDuffee v. Miller, 327 S.W.3d 808, 820 (Tex.App.-Beaumont 2010, no pet.)

2. Registration and change of residence

To be eligible to vote, an individual also must comply with voter registration requirements, including timely notification of any change of address or the need to update other information. See Tex....