Raul (Roy) Morales v. Rudy Segura ( 2015 )

ACCEPTED
04-15-00365-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
8/14/2015 4:57:30 PM
KEITH HOTTLE
CLERK
NO. 04-15-00365-CV
IN THE FOURTH COURT OF APPEALS FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
08/14/2015 4:57:30 PM
KEITH E. HOTTLE
Raul (Roy) Morales, Clerk
Appellant
v.
Rudy Segura,
Appellee
RUDY SEGURA’S BRIEF
Appeal from: Jose Garza
218th Judicial District Court Martin Golando
Atascosa County, Texas Michael P. Moran
Hon. David Peeples, Presiding GARZA GOLANDO MORAN, PLLC
Cause No. 14-12-1070-CVA 115 E. Travis, Suite 1235
San Antonio, Texas 78205
Telephone (210) 892-8543
Fax (210) 428-6448
Attorneys for Appellee
Table of Contents
Index of Authorities ........................................................iii
Statement of Oral Argument ............................................ 1
Issues Presented .............................................................. 2
Statement of Facts ........................................................... 3
Summary of the Argument ............................................... 9
Argument ....................................................................... 11
I. Standard of Review .................................................. 12
II. The trial court properly determined Sheldon Day’s
votes should have been counted .................................. 13
III. Section 63.006 does not require a voter to have been
registered in the voting precinct 30 days before the
election if the voter actually resides in the precinct .... 19
IV. Administrative mistakes by government officials may
not disenfranchise voters and are prime examples of
voting irregularities for election contests .................... 22
V. Conclusion .............................................................. 24
Prayer ............................................................................ 25
i
Certificate of Compliance ............................................... 27
Certificate of Service ..................................................... 28
ii
Index of Authorities
Cases
Alvarez v. Espinosa, 844 S.W.2d 238 (Tex. App.—San Antonio 1992,
writ dism’d w.o.j.) ...................................................................... 13
Barshop v. Medina Cnty. Underground Water Conservation Dist., 925
S.W.2d 618 (Tex. 1996) ............................................................. 18
Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) ................... 12
Gonzalez v. Villarreal, 251 S.W.3d 763 (Tex. App.—Corpus Christi
2008, pet. dism'd) ................................................................ 12, 17
Guerra v. Garza, 865 S.W.2d 573 (Tex. App.—Corpus Christi 1993,
writ dism’d w.o.j.) ...................................................................... 12
McCurry v. Lewis, 259 S.W.3d 369 (Tex. App.—Amarillo 2008, no
pet.) .......................................................................................... 14
Slusher v. Streater, 896 S.W.2d 239 (Tex. App.—Houston [1st Dist.]
1995, no writ) ............................................................................ 13
Thomas v. Groebl, 212 S.W.2d 625 (Tex. 1948) ............................. 18
Tiller v. Martinez, 974 S.W.2d 769 (Tex. App.—San Antonio 1998,
pet dism’d w.o.j.) ........................................................... 13, 14, 23
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) .............................. 13
iii
Statutes
Tex. Elec. Code Ann. § 13.143(a) (West 2014) ............................... 21
Tex. Elec. Code Ann. § 221.003 (West 2014) ........................... 14, 23
Tex. Elec. Code Ann. § 232.014(e) (West 2014) ............................. 25
Tex. Elec. Code Ann. § 232.015 (West 2014) ................................. 25
Tex. Elec. Code Ann. § 232.016 (West 2014) ................................. 25
Tex. Elec. Code Ann. § 63.006 (West 2011) ................................... 15
Tex. Elec. Code Ann. § 63.006 (West 2014) ............................ passim
Other Authorities
Wikipedia, Three Wishes Joke (last updated April 5, 2015)............ 11
iv
Statement of Oral Argument
This case is unremarkable in the issues it presents, and oral
argument would be of little value in the Court’s review of the trial
court’s judgment. Contrary to what Morales claims, the Court can
easily understand from the record and the parties’ briefs why
Sheldon Day’s vote was wrongfully rejected.
1
Issues Presented
Appellant has posed five related questions as issues before
this Court. Appellee believes there are only two issues involved here:
1. Was the trial court’s construction of Texas Election Code
section 63.006 a liberal interpretation in favor of the right to vote?
2. In applying Texas Election Code section 63.006 to the
facts of this case, did the trial court have some evidence reasonably
supporting its decision?
2
Statement of Facts
Appellant, Raul Morales, has offered a slanted and abbreviated
statement of facts. Appellee, Rudy Segura, offers this more
developed and balanced description of the facts of the case for the
benefit of this Court’s analysis.
The City of Jourdanton (“Jourdanton”) is located wholly within
Atascosa County. (Supp. CR 4.) Jourdanton held a general election
on November 4, 2014. (Supp. CR 4.) On the ballot for the general
election were two at-large city council positions. (Supp. CR 4.)
Jourdanton uses a cumulative (or plurality) voting system for
purposes of electing city councilmembers. (Supp. CR 4-5.) Each
voter has two votes. A voter may cast two votes for one candidate,
cast one vote for one candidate and one vote for another candidate,
cast only one vote, or cast no vote. (Supp. CR 4-5.) In this election,
the candidate with the most votes and the candidate with the
second most votes are elected to the city council positions. (Supp.
CR 5.)
The candidates for this election were Rudy Segura (appellee),
Raul (Roy) Morales (appellant), Robert (Doc) Williams, and Robert
3
Herrera, Jr. (Supp. CR 5.) The first set of results for the election
were as follows:
Candidate Votes %
Rudy Segura 363 27.65%
Robert “Doc” 453 34.50%
Williams
Raul (Roy) Morales 364 27.72%
Robert Herrera Jr. 133 10.13%
(Supp. CR 5.) Segura lost by one vote. (Supp. CR 5.)
On November 20, 2014, Susan B. Netardus, the mayor of
Jourdanton, ordered the ballot boxes opened and the ballots
recounted. (Supp. CR 5.) The recount resulted in two more votes for
Williams, bringing his total to 455 votes. (Supp. CR 5.) The other
candidates did not gain or lose any votes. (Supp. CR 5.)
On December 2, 2014, the Jourdanton City Council canvassed
the election. (Supp. CR 6.) The council certified that Williams and
Morales were the winners of the council elections. (Supp. CR 6.)
This election contest, challenging the results of the election, was
filed on December 31, 2014. (CR 5.)
Trial in this cause was held on June 8, 2015. (RR 1.) At trial
4
Segura established that Sheldon Day had been a resident of
Jourdanton since May 2014. (RR 28-29.) Day moved that month to
Jourdanton from another city in Atascosa County. (RR 28-29, 78.)
In June 2014, well ahead of election season, Day went to the Texas
Department of Public Safety (DPS) office in Jourdanton, changed
his address on his driver license, and asked that his voter
registration information be changed to reflect his new address. (RR
29, 40-41.) In fact, Day’s provisional ballot for the election showed
that his identification was updated on July 17. (RR 150,
Contestant’s ex. 10.)
On October 20, 2014, Day went to the Atascosa County early
voting location to vote in the November 2014 elections, including
the Jourdanton City Council election. (RR 30.) Day presented his
new driver license (a valid Texas voter ID) at the early voting
location, showing that he lived in Jourdanton, and asked to be
allowed to vote in the City Council election. (RR 30.)1 The election
officers at the voting location verified that Day was a registered
1 A copy of Day’s driver license was admitted into evidence. (RR 143,
Contestant’s ex. 2.) The license shows it was issued on October 20, 2014. This
license was issued when Day went to DPS the second time to change his voting
address. However, Day’s July license, which was presented to election officers,
included his Jourdanton address and was identical to his October license
5
voter in Atascosa County. (RR 30-31, 91-92.) Day was never
instructed by the election officers to retrieve his voter registration
card because his status as a registered voter of Atascosa County
was not in question. (See RR 33.)2 Atascosa County Elections
Administrator Janice Ruple testified that Day was a registered voter
for the election and that the election officers at the early voting
location knew from their records he was a registered voter in
Atascosa County when he attempted to vote. (RR 74, 91-92). Day
testified that he still had his old voter registration certificate and
had the election officers requested Day show them it, he would have
done so. (RR 33.)
Day was allowed to cast a ballot in the general election but not
in the Jourdanton City Council election. (RR 31-32.) An election
officer at the early voting location told Day to have DPS change his
address for voter registration purposes. (RR 32.) Day obeyed, went
to DPS again, changed his address for voting purposes again, and
except for the issue date. (RR 33-35.)
2 It makes sense that Day would not have brought his voter registration
certificate. The Texas Voter ID law has effectively rendered the certificate
nugatory. Voters are no better off if they bring it because election officers can
independently verify their registration. (RR 77-78.) The ID is all that matters. In
fact, had Day brought his old certificate, Atascosa election officers would still
have wrongly prohibited him from voting. (See RR 85-86.)
6
still as of the day of trial, had not received an updated voter
registration certificate. (RR 32-35, 41.) Tellingly, Ruple, the
elections administrator, said that she did not know whether Day
had instructed DPS to change his voting address. (RR 89.) Ruple
could not tell from her records whether DPS made an error or not.
(RR 89, 91.)3
Day was given a provisional ballot, the only option election
officers offered him. (RR 32.) Not even Ruple knew about the
affidavit of residence option under section 63.006. (See RR 94.) She
said election officers only offered to voters the statement of
residence (section 63.0011) and a provisional ballot (section 63.009).
(RR 94.)
Day cast the provisional ballot, giving his two votes to Segura.
(RR 36, 114.) In order to cast the provisional ballot, Day had to
complete an affidavit swearing to substantially all the facts required
under section 63.006. (See RR 142, Contestant’s ex. 1.) Day did not
3 Segura takes issue with Morales’s statement that Ruple was able to
ascertain that Day never changed his voter registration address. Appellant’s Br.
2 (July 27, 2015). This is simply not supported by the record. Ruple testified
that her computer records indicated he had not. But computer records can be
inaccurate because of human error. If DPS had failed to update Segura’s
address, of course her computer records would indicate he was still registered
at his old address, leading to Ruple’s mistaken assumption that he had never
7
vote in the local elections held where he used to live in Atascosa
County. (RR 113.) The only local election he voted in was that held
by Jourdanton. (RR 113.) His provisional ballot was rejected by
election officials. (CR 23; RR 85.) If the votes cast by Day had been
counted, Segura would have been a winner, beating Morales by one
vote. (RR 139-40.)
After submission of the evidence, the trial court ruled that
Day’s votes should have counted and determined that the true
outcome of the City Council election was as follows:
Candidate Votes %
Rudy Segura 365 27.71%
Robert “Doc” 455 34.55%
Williams
Raul (Roy) Morales 364 27.64%
Robert Herrera Jr. 133 10.10%
The trial court declared Segura a winner. (RR 140.)
changed his address.
8
Summary of the Argument
This case is about whether, in protecting the right to vote,
courts will depart from precedent and now elevate form over
substance. Morales, appellant, wants form to triumph. Segura,
appellee, wants substance and the right to vote to prevail. In 2011,
the Texas Legislature required all voters to establish their identity
with proper photo identification. In the 2011 amendments, the
Texas legislature permitted a voter who is registered in a county to
vote in the precinct of his new residence, even if election records
indicate the voter is registered in another precinct within the county.
See Tex. Elec. Code Ann. § 63.006(a) (West 2014). Voter Sheldon
Day, frustrated by his efforts to modify his registration residence, is
exactly the voter contemplated by section 63.006, and he was
entitled to cast a regular ballot.
Moreover, Day did all he could to qualify for the Jourdanton
City Council election. Administrative mistakes led to his registration
residence not being updated. Administrative mistakes should not be
used to disenfranchise voters. Day properly registered in
Jourdanton and his votes should have been counted in the 2014
9
Jourdanton election.
10
Argument
Morales argues that voter Sheldon Day should have brought
his voter registration certificate, even though this would have been
a pointless act (as the head election official testified at trial),
because it is what the statute literally says. In addition, Morales
argues that there is truly a difference between checking a box on a
form and telling a clerk to check the box. The former is the correct
way and the latter is void. This mindset of interpreting human
actions and words is best left to the “three wishes joke” from
various stories and commercials, in which a genie literally
interprets wishes to the disappointment of the wisher. Wikipedia,
Three Wishes Joke (last updated April 5, 2015)4.
Literal interpretations may be funny in the context of stories
but they are not funny when the right to vote is on the line.
Statutes regulating the right to vote should be given a liberal
interpretation in favor of that right. This rule of construction, to
avoid depriving individuals of their franchise, applies as well to
registration laws as to other laws regulating voting. The trial court’s
4 Available at https://en.wikipedia.org/wiki/Three_wishes_joke
11
interpretation and application of section 63.006 is consistent with
this rule of construction.
I. Standard of Review
A trial court’s determination in an election contest is reviewed
for an abuse of discretion. Guerra v. Garza, 865 S.W.2d 573, 576
(Tex. App.—Corpus Christi 1993, writ dism’d w.o.j.). In determining
whether there has been an abuse of discretion concerning legal or
factually sufficiency, courts of appeal engage in a two-pronged
approach: (1) did the trial court have sufficient information upon
which to exercise its discretion and (2) did the trial court err in its
application of discretion? Gonzalez v. Villarreal, 251 S.W.3d 763,
774 n.16 (Tex. App.—Corpus Christi 2008, pet. dism'd). An abuse of
discretion does not occur if some evidence reasonably supports the
trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211
(Tex. 2002). In reviewing a court’s factual determinations for an
abuse of discretion, the reviewing court may not substitute its
judgment for that of the trial judge. Id. A great deal of deference
should be given to the trial court as the trier of fact in its
12
determination of both credibility of witnesses and the weight of the
testimony. Slusher v. Streater, 896 S.W.2d 239, 245 (Tex. App.—
Houston [1st Dist.] 1995, no writ). In addition, the trial court
should be given discretion to resolve any conflicts arising from the
evidence. Alvarez v. Espinosa, 844 S.W.2d 238, 246 (Tex. App.—San
Antonio 1992, writ dism’d w.o.j.). The trial court’s judgment should
not be overturned unless it is apparent from the record that the
court could have reached only one result. Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992); Tiller v. Martinez, 974 S.W.2d 769,
777 (Tex. App.—San Antonio 1998, pet dism’d w.o.j.).
II. The trial court properly determined Sheldon Day’s votes
should have been counted
Sheldon Day’s votes should have been counted. Day presented
proper photo ID, Day was registered to vote in Atascosa County. He
proved that he resided in Jourdanton, and he would have executed
the required affidavit.
To challenge an election, the contestant has the burden of
proving by clear and convincing evidence that voting irregularities
materially affected the election results. Tiller, 974 S.W.2d at 772;
13
see Tex. Elec. Code Ann. § 221.003 (West 2014). The outcome of an
election is “materially affected” when a different and correct result
would have been reached in the absence of irregularities. McCurry v.
Lewis, 259 S.W.3d 369, 373 (Tex. App.—Amarillo 2008, no pet.). To
overcome this burden, 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. Tiller, 974 S.W.2d at 772; Tex.
Elec. Code Ann. § 221.003(a) (West 2014).
An election official prevents an eligible voter from voting, fails
to count legal votes, engages in illegal conduct, or makes a mistake
when the official refuses to permit a voter who can meet the
requisites of Texas Election Code section 63.006(a) to vote. This
section provides that a voter who is not listed on the precinct list of
registered voters but who nonetheless resides in the precinct and is
registered in the county is eligible to vote and must be accepted for
voting if the voter executes an affidavit of residency. Id. § 63.006(a).
This provision of the election code was amended in 2011 and was in
effect in the 2014 Jourdanton City Council election. Before the
amendment, section 63.006 read in pertinent part as follows:
14
a voter who, when offering to vote, presents a
voter registration certificate indicating that the
voter is currently registered in the precinct in
which the voter is offering to vote, but whose
name is not on the precinct list of registered
voters, shall be accepted for voting.
Tex. Elec. Code Ann. § 63.006 (West 2011). As can be seen, the
voter had to prove registration in the voting precinct. After the
amendment the pertinent part of the statute reads as follows:
A voter who, when offering to vote, presents
[proper photo ID] but whose name is not on
the precinct list of registered voters shall be
accepted for voting if the voter also presents a
voter registration certificate indicating that the
voter is currently registered:
(1) in the precinct in which the voter is
offering to vote; or
(2) in a different precinct in the same
county as the precinct in which the voter
is offering to vote and the voter executes
an affidavit stating that the voter:
(A) is a resident of the precinct in which
the voter is offering to vote or is
otherwise entitled by law to vote in that
precinct;
(B) was a resident of the precinct in which
the voter is offering to vote at the time the
information on the voter's residence
address was last provided to the voter
15
registrar;
(C) did not deliberately provide false
information to secure registration in a
precinct in which the voter does not reside;
and
(D) is voting only once in the election.
Tex. Elec. Code Ann. § 63.006(a) (West 2014) (emphasis added). The
changes to section 63.006 authorize a voter to vote in a precinct
different from the one that is designated on his registration card
and in county records so long as it is established that he is in fact
registered in the county and that he is a resident of the precinct in
which he seeks to vote.
It is not disputed that Sheldon Day lived in Jourdanton since
May 2014. It is not disputed that Day presented proper photo ID at
the polls, and it is not disputed that the ID clearly established his
residence in Jourdanton since July 2014. Most important, it is
not disputed that Day was registered to vote in Atascosa
County. Day qualified for voting in Jourdanton under section
63.006.
Morales argues that section 63.009 applies, not 63.006.
Morales claims that whether 63.006 or 63.009 applies turns on
whether the voter brings the voter’s certificate to the polling location.
16
Appellant’s Br. 5-6 (July 27, 2015). But Morales stops there. He
does not take the next step of asking what the purpose of bringing
the certificate is. Why would the Texas Legislature require a voter to
do this? Since the voter was omitted from the precinct list of
registered voters, election officers cannot verify the voter is
registered. Accordingly, the reason for requiring the voter to bring
the voter’s certificate is that the certificate proves the voter is
registered. See e.g., Gonzalez, 251 S.W.3d at 780 (citing Tex. Elec.
Code Ann. § 63.009(b) (West 2011) (Before the voter ID law, if a
voter arrived without a certificate and the voter’s name was not on
precinct list, an election clerk was authorized to contact the voter
registrar to determine if the voter was registered and accept the
voter for voting.).
Morales’s construction of section 63.006 runs counter to
statutory rules of construction of election provisions. As the Texas
Supreme Court long ago determined:
The right to vote is so fundamental in our form
of government that it should be as zealously
safeguarded as are our natural rights. It has
been said that ‘laws abridging the natural right
of the citizen should be restrained by rigorous
constructions within their narrowest limits.’ It
17
is sufficient, however, that we apply here the
less extreme and well established rule of
construction that statutes regulating the
right to vote should be given a liberal
interpretation in favor of that right.
Thomas v. Groebl, 212 S.W.2d 625, 630 (Tex. 1948) (emphasis
added).
The trial court determined that the provision requiring the
registration certificate was directive not mandatory. Its purpose was
fulfilled because everyone acknowledged that Day was registered in
Atascosa County and a registration certificate was not required in
order to cast a vote. The court’s interpretation is consistent with the
rules of election law construction. First, such construction favors
enfranchising the voter. Second, it avoids a too literal construction
that would prevent the enforcement of its true intent. The Texas
Supreme Court “has recognized that [a] too literal construction of a
statute, which would prevent the enforcement of it according to its
true intent, should be avoided.” Barshop v. Medina Cnty.
Underground Water Conservation Dist., 925 S.W.2d 618, 629-30 (Tex.
1996) (internal quotation marks omitted).
Here no one disputed Day’s registration in the County.
18
Similarly, no one disputes that the County’s records indicated he
was registered in a precinct different from the one he sought to vote
in. Section 63.006 requires that a voter be permitted to vote where a
voter presents the proper ID but is shown to be registered “in a
different precinct in the same county as the precinct in which the
voter is offering to vote and the voter executes an affidavit.” Tex.
Election Code Ann. § 63.006(a) (West 2014). Thus, Day qualified for
voting in the Jourdanton City Council election and should have
been permitted to vote.
III. Section 63.006 does not require a voter to have been
registered in the voting precinct 30 days before the
election if the voter actually resides in the precinct
Morales argues that in order to be accepted for voting under
section 63.006, a voter must have been registered 30 days before
the election in the voting precinct. However, section 63.006 does
not require 30-day registration, and it would not make sense, when
considering the language of 63.006, to impose such a requirement.
Nothing in 63.006 requires a voter to have been registered 30
days before the election in the voting precinct. In fact, the plain
19
language of 63.006 excludes any such requirement. The key
language is in 63.006(a)(2)(A):
A voter who, when offering to vote, presents
[proper photo ID] but whose name is not on
the precinct list of registered voters shall be
accepted for voting if the voter also presents a
voter registration certificate indicating that the
voter is currently registered: . . . in a different
precinct in the same county as the precinct in
which the voter is offering to vote and the voter
executes an affidavit stating that the voter:
(A) is a resident of the precinct in which
the voter is offering to vote or is
otherwise entitled by law to vote in that
precinct;
Tex. Elec. Code Ann. § 63.006(a)(2)(A) (West 2014) (emphasis added).
There are two ways to satisfy subsection (a)(2)(A). One is to be a
resident of the voting precinct (no 30-day requirement) and affirm
so under oath. The other is to otherwise be entitled to vote (where
the 30-day requirement would come into play) and affirm so under
oath. Under this language, since Day met the first requirement, he
was not required to be “otherwise entitled by law to vote” in the
precinct.
Additionally, the statutory provision Morales cites for the 30-
20
day requirement applies to registration only. The provision provides
that an approved voter registration application becomes effective the
30th day after the date the application was submitted. Id. §
13.143(a). Day was already registered to vote in Atascosa County
more than 30 days before the election. He merely wanted to change
his voting address to a different precinct. Thus, the 30-day
provision does not apply.
Morales ushers a parade of horribles to scare the Court into
legislating a 30-day registration requirement. Nomadic bands of
mischievous voters will descend on small towns like Jourdanton the
day before the election, demand to vote under section 63.006, and
destroy the integrity of their elections. The same sort of argument
was presented to the trial court by Morales and rightfully rejected.
(See RR 137-38.)
First, it should be noted there is not even a whiff of voter fraud
in this case. Day did not intend to vote twice, and he did not vote
twice. He never attempted to vote in the local elections where he
was previously registered. The only local election he voted in was
Jourdanton (by a provisional ballot).
To Morales’s slippery slope hypothetical, Segura has a one
21
word response: perjury. In order to vote under 63.006, a voter has
to swear that the voter is a resident of the voting precinct. Id. §
63.006(a)(2)(A). Under Morales’s grim hypothetical, these bands of
voters would be lying under oath because they did not have “any
intention of remaining within that jurisdiction or establishing
residency there.” Appellant’s Br. 6 (July 27, 2015). These voters
would be easily found by consulting the poll list and the registration
omissions list. See Tex. Elec. Code Ann. § 63.006(b) (West 2014).
Thus, there are no floodgates for this Court to inadvertently open
when only a raindrop has fallen.
IV. Administrative mistakes by government officials may not
disenfranchise voters and are prime examples of voting
irregularities for election contests
Even if the Court determines that Sheldon Day was required to
be registered in Jourdanton 30 days before the election, he would
have been had DPS performed its duty. Day told a DPS clerk that
he wanted to change his voter registration address. However, the
clerk, or some other agent of DPS, failed to update his address for
that purpose.
22
One ground for an election contest is when an eligible voter is
prevented from voting by the mistake of an election official. Tiller,
974 S.W.2d at 772; Tex. Elec. Code Ann. § 221.003(a) (West 2014).
The administrative mistakes in this case are as follows: (1) the DPS
clerk failed to update Day’s voter registration, (2) election officials
failed to send an updated voter registration certificate to Day, and
(3) the election official failed to inform Day that he could vote under
section 63.006 with his old certificate.
From the facts presented to the trial court, it could conclude
that there was clear and convincing evidence that an administrative
mistake robbed Day of his vote in the Jourdanton City Council
election. The trial court heard Day’s testimony that he moved to
Jourdanton around May 2014. Day directed a DPS clerk to update
his registration. Through an administrative mistake on the part of
DPS, he never received a new voter certificate for the November
2014 election. Day went to vote in the Jourdanton City Council
elections the first day of early voting. He was not told by election
officials that he could cast a ballot using his old certificate. He was
sent back to DPS to get a new voter certificate. As of the trial date,
he had yet to receive an updated certificate. The trial court even
23
inspected the provisional ballot cast by Day showing two votes for
Segura, bolstering Day’s credibility. Given that there was strong
evidence of an administrative mistake, the trial court did not abuse
its discretion.
V. Conclusion
Sheldon Day’s votes should have been counted for two
independent reasons. First, he satisfied section 63.006. Second, his
attempts to change his voter registration address were thwarted by
an administrative mistake. The trial court properly evaluated the
evidence and correctly applied the appropriate law. Its judgment
should be affirmed.
24
Prayer
Segura prays that the Court deny oral argument, affirm the
trial court’s judgment, order that Segura immediately take office,
and grant all other relief it deems appropriate.
Segura has not been allowed to assume his position on the
Council. See Tex. Elec. Code Ann. § 232.016 (West 2014). The
election was in November 2014. This Court has properly proceeded
with this cause on an expedited schedule. In light of the delay in
having the true winner of the election take his position on the City
Council and since the issue before this Court is straightforward,
Segura further requests that this Court, under Tex. Elec. Code
section 232.014(e), refuse to accept any motion for rehearing or
reduce the time for filing any such request for rehearing in the
event the Court does not order that Segura immediately take office.
Tex. Elec. Code Ann. § 232.014(e) (West 2014); See id. § 232.015
(“[An] appellate court may accelerate the appeal in a contest of a
general . . . election in a manner consistent with the procedures
prescribed by Section 232.014.”).
25
DATED: August 14, 2015
Respectfully submitted,
/s/ Jose Garza
JOSE GARZA
Texas Bar No. 07731950
garzpalm@aol.com
MARTIN GOLANDO
Texas Bar No. 24059153
martin.golando@gmail.com
MICHAEL P. MORAN
Texas Bar No. 24092857
michael@ggmtx.com
GARZA GOLANDO MORAN, PLLC
115 E. Travis, Ste. 1235
San Antonio, Texas 78205
(210) 892-8543
fax: (210) 428-6448
Attorneys for Appellee, Rudy Segura
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Certificate of Compliance
I certify that this document was produced on a computer
using Microsoft Word 2011 and contains 4,246 words, as
determined by the computer software's word count function,
excluding the sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(1).
/s/ Michael P. Moran
27
Certificate of Service
I certify that on August 14, 2015, I served a copy of this
document on the parties listed below by electronic service and that
the electronic transmission was reported as complete:
KEITH A. KENDALL
kkendall@dtrglaw.com
FRANK J. GARZA
fgarza@dtrglaw.com
/s/ Michael P. Moran
28