Armando Barrera v. Carlos Omar Garcia ( 2012 )


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  •                                  MEMORANDUM OPINION
    No. 04-12-00469-CV
    Armando BARRERA,
    Appellant
    v.
    Carlos Omar GARCIA,
    Appellee
    From the 79th Judicial District Court, Jim Wells County, Texas
    Trial Court No. 12-07-51258
    Honorable Don Wittig, Judge Presiding
    Opinion by:       Catherine Stone, Chief Justice
    Sitting:          Catherine Stone, Chief Justice
    Karen Angelini, Justice
    Rebecca Simmons, Justice
    Delivered and Filed: September 19, 2012
    AFFIRMED
    This appeal arises from an election contest challenging the outcome of the vote in the
    Democratic Party Primary for the Office of District Attorney for the 79th Judicial District.
    Armando Barrera contends the trial court abused its discretion in not declaring him the winner of
    the primary because 59 ballots were duplicated contrary to section 127.126 of the Texas Election
    04-12-00469-CV
    Code and 14 eligible votes were not counted. We overrule Barrera’s first issue and affirm the
    trial court’s judgment. 1
    BACKGROUND
    After a recount, Carlos Omar Garcia was declared the winner in the Democratic Party
    Primary for the Office of District Attorney for the 79th Judicial District by 19 votes. Barrera
    filed an election contest challenging the outcome. Pertinent to this appeal, Barrera challenged
    the manner in which 59 mail-in ballots were duplicated and the failure to count an additional 14
    ballots. If the 59 mail-in ballots were excluded from the vote count, the vote for the two
    candidates would result in a tie; however, if the 14 uncounted ballots were also counted, Barrera
    asserts he would be declared the winner by 14 votes.
    The original mail-in ballots sent by the county elections officer for Jim Wells County,
    which is included in the 79th Judicial District, omitted a candidate’s name in an unrelated race.
    Although corrected ballots were mailed, 59 of the original ballots that had excluded the name
    were returned. These ballots could not be counted by the machine because the machine was
    calibrated to count the corrected ballot. Accordingly, the votes from the original ballots were
    duplicated to enable them to be counted. The original ballots were kept in a separate box. The
    duplicate ballots could be identified because they were the only mail-in ballots that were not
    folded. Finally, Barrera stipulated that the duplicate ballots were accurate copies of the original
    ballots.
    After hearing the evidence presented in the election contest, the trial court overruled the
    contest.
    1
    We do not address Barrera’s second issue because it is not necessary to the disposition of this appeal. TEX. R. APP.
    P. 47.1.
    -2-
    04-12-00469-CV
    STANDARD OF REVIEW
    A judgment in an election contest is reviewed for abuse of discretion. Reese v. Duncan,
    
    80 S.W.3d 650
    , 655 (Tex. App.—Dallas 2002, pet. denied); Tiller v. Martinez, 
    974 S.W.2d 769
    ,
    772 (Tex. App.—San Antonio 1998, pet. dism’d w.o.j.). A trial court abuses its discretion with
    regard to the resolution of factual issues if the trial court could reasonably have reached only one
    decision which is contrary to the decision reached. Walker v. Packer, 
    827 S.W.2d 833
    , 839-40
    (Tex. 1992). “A trial court has no ‘discretion’ in determining what the law is or applying the law
    to the facts.” 
    Id. at 840.
    “Thus a clear failure by the trial court to analyze or apply the law
    correctly will constitute an abuse of discretion.” 
    Id. ELECTION CONTEST
    In order for the outcome of an election to be set aside, the contestant has the burden of
    proving: (1) violations of the Election Code occurred; and (2) those violations materially affected
    the outcome of the election. Willet v. Cole, 
    249 S.W.3d 585
    , 589 (Tex. App.—Waco 2008, no
    pet.); Garza v. Alcala, No. 04-04-00855-CV, 
    2006 WL 1080241
    , at *2 (Tex. App.—San Antonio
    Apr. 26, 2006, no pet.) (mem. op.). “The outcome of an election is ‘materially affected’ when a
    different and correct result would have been reached in the absence of the irregularities.” 
    Willet, 249 S.W.3d at 589
    .
    An election contestant’s burden is a heavy one, and the declared results of an election
    will be upheld in all cases except where there is clear and convincing evidence of an erroneous
    result. 
    Willet, 249 S.W.3d at 589
    ; Garza, 
    2006 WL 1080241
    , at *2. The clear and convincing
    standard requires more proof than the preponderance of the evidence standard applicable in most
    civil cases. 
    Willet, 249 S.W.3d at 589
    ; Garza, 
    2006 WL 1080241
    , at *2. To be clear and
    convincing, the evidence must produce in the mind of the trier of fact a firm belief or conviction
    -3-
    04-12-00469-CV
    as to the truth of the allegations sought to be proved. 
    Willet, 249 S.W.3d at 589
    ; Garza, 
    2006 WL 1080241
    , at *2.
    SECTION 127.126
    Section 127.126(a) of the Texas Election Code gives the manager of a central counting
    station the discretion to have ballots duplicated for automatic counting. TEX. ELEC. CODE ANN.
    § 127.126(a) (West 2010). Barrera’s argument regarding the duplication of the 59 mail-in ballots
    is based on section 127.126(e) of the Texas Election Code, which provides, “Each duplicate
    ballot must be clearly labeled ‘Duplicate’ and must bear the serial number of the original ballot.”
    
    Id. at §
    127.126(e). Barrera’s argument is premised on the language in section 127.126(e) being
    mandatory, thereby invalidating duplicate ballots that are not labeled “Duplicate” or do not
    contain the serial number of the original ballot.
    This premise for Barrera’s argument is, however, contrary to the general rule of statutory
    interpretation with regard to election law. “The general rule of interpretation is that the election
    laws are to be construed as directory in the absence of fraud or a mandatory provision which
    requires the voiding of a ballot for failure to comply with its provisions.” Reese v. 
    Duncan, 80 S.W.3d at 658
    (quoting Kelley v. Scott, 
    733 S.W.2d 312
    , 313-14 (Tex. App.—El Paso 1987, writ
    dism’d)). As this court has previously explained:
    The general rule is that the performance of duties placed upon the election
    officials are directory, unless made mandatory by statute, while those placed upon
    the voters are mandatory. It has been said many times by our courts that the
    object of every popular election is to ascertain the will of the qualified electors in
    the area to be affected thereby upon the issue or issues submitted to them. Our
    courts have also said that statutory enactments concerning elections must be
    strictly enforced to prevent fraud but liberally construed in order to ascertain and
    effectuate the will of the voters. The rule is that statutes regulating the manner of
    holding an election are merely directory and a departure from their provisions will
    not ordinarily invalidate an election, unless such departure or such irregularities
    have affected or changed the results of the election.
    -4-
    04-12-00469-CV
    This court in Fugate v. Johnson, 
    251 S.W.2d 792
    (Tex. Civ. App.—San
    Antonio 1952, no writ), stated that the aim of the Election Code is to safeguard
    the purity of the ballot box and at the same time to see that the will of the people
    shall prevail. The purpose of the Code is to prohibit error, fraud, mistake, and
    corruption, and yet it may not be used as an instrument of disfranchisement for
    irregularities of procedure. Since the will of the legal voters as expressed at the
    polls is the matter of paramount concern, and, in the absence of any showing of
    fraud, or reasonable indication that such will has not been fairly expressed and the
    evidence thereof properly preserved, the courts have been liberal in construing
    and enforcing as directory only the provisions of the election laws which are not
    upon their face clearly mandatory. 
    Id. at 793.
    Prado v. Johnson, 
    625 S.W.2d 368
    , 369-70 (Tex. Civ. App.—San Antonio 1981, writ dism’d).
    In this case, Barrera stipulated the original mail-in ballots were accurately duplicated, and
    section 127.126 does not contain a provision prohibiting the counting of a duplicate ballot that
    does not comply with section 127.126(e). 2 Compare 
    Reese, 80 S.W.3d at 657-58
    (construing
    election statute that expressly stated, “a ballot returned in violation of this section may not be
    counted.”). Accordingly, we hold that section 127.126 is directory with regard to the duplication
    of ballots, and because Barrera stipulated the ballots were accurately duplicated, the trial court
    did not abuse its discretion in overruling Barrera’s contest.
    CONCLUSION
    The trial court’s judgment is affirmed. Given the election’s timing, Barrera’s request that
    this court decline to entertain any motion for rehearing is granted, and the clerk of this court is
    directed to issue this court’s mandate contemporaneously with this court’s opinion and judgment.
    See TEX. R. APP. P. 18.1(c).
    Catherine Stone, Chief Justice
    2
    Barrera cites Thompson v. Willis, 
    881 S.W.2d 221
    (Tex. App.—Beaumont 1994, no writ), as an example of a case
    holding that the improper duplication of ballots voids the ballots. In that case, however, the election officials
    marked over the very ballots previously marked by the voters. 
    Id. at 223.
    Because the election officials marked on
    the voter’s original ballots, the court held that the election officials rendered assistance to the voters in violation of
    Chapter 64 of the Election Code, which provided: “If assistance is provided to a voter who is not eligible for
    assistance, the voter’s ballot may not be counted.” 
    Id. at 223-224.
    Accordingly, in accordance with the general rule
    of interpretation, the over-marked ballots in that case could not be counted because the mandatory language of the
    statute prohibited the ballots from being counted. 
    Id. at 224-25.
    -5-
    

Document Info

Docket Number: 04-12-00469-CV

Filed Date: 9/19/2012

Precedential Status: Precedential

Modified Date: 10/16/2015