                         NUMBER 13-11-00763-CV

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


J.J. GARZA, OSCAR “COACH” SALINAS,
EDEN RAMIREZ JR., AND GABRIEL SALINAS,                                  Appellants,

                                          v.

JUAN “J.J.” PENA, ADOLFO “FITO” SALINAS,
JOHNN VALENTE ALANIZ, AND NARCISCO
“CHICHO” SOLIS,                                                           Appellees.


                    On appeal from the 93rd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION

               Before Justices Rodriguez, Garza, and Perkes
                Memorandum Opinion by Justice Rodriguez
      In this school board election contest case, appellants J.J. Garza, Oscar "Coach"

Salinas, Eden Ramirez Jr., and Gabriel Salinas challenge the summary judgment granted

in favor of appellees Juan "J.J." Pena, Adolfo "Fito" Salinas, Johnn Valente Alaniz, and
Narcisco "Chicho" Solis. By six issues, appellants argue that the trial court erred in

granting summary judgment because: both the no-evidence and traditional motions

were substantively defective; appellants produced more than a scintilla of evidence; and

appellees' summary judgment evidence was incompetent. We affirm.

                                      I. Background

       Appellants filed a lawsuit contesting the results of the 2010 La Joya Independent

School District school board election. Appellants were unsuccessful in their races for

four seats on the school board; appellees were the winners of the four seats. In their

petition, appellants alleged that 1100 voters who were ineligible for assistance were

illegally assisted in voting in the election. See TEX. ELEC. CODE ANN. § 64.031 (West

2010) (providing that voters are eligible for assistance in marking their ballots if they have

a physical disability rendering them unable to write or see or if they are unable to read the

language in which the ballot is written). Appellants also alleged that some of the voters

were illegally assisted by their employers or an agent of their employers. See id. §

64.032 (West 2010) (specifying who can assist a voter and prohibiting a voter's employer

from providing that assistance).       Finally, appellants alleged that election officials

engaged in fraud by allowing the alleged illegal assistance. Appellants then claimed that

the election results were invalid as a result of the illegal assistance, praying that the court

either declare appellants the winners of the election or declare the results

unascertainable and void and order a new election. See id. § 64.037 (West 2010) ("If

assistance is provided to a voter who is not eligible for assistance, the voter's ballot may

not be counted.").

       Appellees filed no-evidence and traditional motions for summary judgment. In
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their no-evidence motion, appellees argued that appellants had no evidence: that 1100

votes were illegally cast; that any voter actually voted pursuant to instructions provided by

people providing assistance; or that there was actual fraud on the part of the people

providing assistance. In their traditional motion, appellees argued that appellants' cause

of action fails as a matter of law because election judges are not permitted to inquire as to

the reasons a voter is asking for assistance, and as such, appellants cannot prove that

there was any knowing fraud on the part of election officials. Appellants responded to

the motions for summary judgment, attaching to their response the affidavits of several

persons who reviewed lists of voters and averred that those voters did not qualify for

assistance.

       After a hearing, the trial court granted appellees' no-evidence motion, finding that

appellants "failed to prove any fraud or illegality with respect to the November 2010 La

Joya ISD School Board Election."

                                 II. Standard of Review

       In a no-evidence summary judgment motion under rule 166a(i), the movant must

specifically state the elements for which there is no evidence. TEX. R. CIV. P. 166a(i).

The burden then shifts to the non-movant to bring forth evidence that raises a fact issue

on the challenged elements. Id. When reviewing a no-evidence summary judgment

ruling, we review the evidence in the light most favorable to the non-movant, disregarding

all contrary evidence and inferences. See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316,

317 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A no-evidence summary judgment

motion is properly granted when the non-movant brings forth less than a scintilla of

evidence to raise a genuine issue of material fact. See TEX. R. CIV. P. 166a(i). Less
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than a scintilla of evidence exists when the evidence is "so weak as to do no more than

create a mere surmise or suspicion." Macias, 988 S.W.2d at 317 (citing Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). Conversely, more than a scintilla of

evidence exists when the evidence "rises to a level that would enable reasonable and

fair-minded people to differ in their conclusions." Id. (citing Burroughs Wellcome Co. v.

Crye, 907 S.W.2d 497, 499 (Tex. 1995)). Because the propriety of granting or denying a

summary judgment is a question of law, we review the trial court's decision de novo.

Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).

                                   III. Applicable Law

       The right to vote should be as zealously guarded as are natural rights, and statutes

regulating that right should be liberally interpreted in favor of the right. Mahaffey v. Gill,

459 S.W.2d 919, 922 (Tex. Civ. App.—Texarkana 1970, no writ); Wooley v. Sterrett, 387

S.W.2d 734, 738 (Tex. Civ. App.—Dallas 1965, no writ). For this reason, the statutes

regulating the manner of holding an election are generally directory, and a departure from

their provisions will not ordinarily invalidate an election unless such departure affects or

changes the results of the election. Wright v. Bd. of Trs. of Tatum Indep. Sch. Dist., 520

S.W.2d 787, 793 (Tex. Civ. App.—Tyler 1975, writ dism'd). Election contestants must

therefore allege and prove particularized material irregularities in the conduct of the

election and establish either: (1) that a different and correct result should have been

reached by counting or not counting certain specified votes affected by the irregularities;

or (2) that the irregularities were such as to render a determination of the true will of the

majority of the voters impossible. Id.; White v. Hearne, 514 S.W.2d 765, 767 (Tex. Civ.

App.—Waco 1974, no writ); see also Concerned Citizens for Better Educ., Inc. v.
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Woodley, 623 S.W.2d 488, 491 (Tex. App.—Texarkana 1981, writ dism'd) ("The burden is

on the contestant to prove that irregularities in the conduct of an election occurred which

affected the outcome of the election. As a policy, declared election results should be

upheld unless there is convincing evidence of an erroneous result.").           Specifically,

absent evidence that any voter actually voted pursuant to instructions of an election

judge, and absent evidence of fraud on part of any election judge or official, an election

should not be invalidated. Wooley, 387 S.W.2d at 741–42.

                                     IV. Discussion

       By three issues, appellants challenge the no-evidence summary judgment. First,

appellants argue that appellees' no-evidence motion is substantively defective in that it

did not identify the specific elements of appellants' causes of action for which there was

no evidence. See TEX. R. CIV. P. 166a(i). Because appellees' no-evidence motion did

not comply with rule 166a(i), appellants argue that the trial court erred in shifting the

burden to appellants to overcome the motion.          Finally, appellants argue that they

produced more than a scintilla of evidence such that the trial court erred in granting

summary judgment on a no-evidence basis.

       We first address appellants' substantive-defect argument. Appellants contend

that they brought four separate causes of action and that appellees' no-evidence motion

failed to specifically identify the element or elements in each of these causes of action for

which there was no evidence. In their brief, appellants identify the following as separate

causes of action:

       (1)    1100 voters voted illegally because they requested assistance for
              which they were not entitled . . . ;

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      (2)    voters were provided assistance by their employer or an agent of the
             employer . . . ;

      (3)    the election officials engaged in other fraud or illegal conduct or
             made mistakes by allowing such assistance . . . ; and

      (4)    there were voting irregularities in the counting and casting of ballots
             to such an extent that the true outcome would be that the Appellants
             won the election or that the election could not be ascertained,
             thereby warranting a new election.

We disagree that the foregoing are separate causes of action. Rather, (1) and (2) are

the factual allegations underlying appellants' ultimate election contest cause of action

embodied in (3) and (4)—i.e., that the illegal assistance caused material irregularities in

the conduct of the school board election. In their motion, appellees asserted that there

was no evidence that any voter actually voted pursuant to instructions provided by people

providing assistance, an assertion clearly directed to the required election-contest

element that the alleged irregularity must affect the outcome of the election. See Wright,

520 S.W.2d at 793; Wooley, 387 S.W.2d at 741-42. As such, we are not persuaded by

appellants' argument that appellees' motion was substantively defective.

      Next, appellants argue that they produced enough evidence to survive the

no-evidence motion.     Appellants point to the affidavits attached to their summary

judgment response, in which a series of poll watchers and other persons averred that

certain voters, totaling approximately 1100, were not eligible for the assistance they

received at the polls. For the sake of our review, we view this evidence in the light most

favorable to appellants and will assume that, indeed, 1100 votes should not have been

counted. See Macias, 988 S.W.2d at 317; see also TEX. ELEC. CODE ANN. § 64.037.

Regardless, appellants were still required to produce evidence that those 1100

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illegally-assisted voters voted pursuant to the instructions of the persons assisting them

and that this affected the outcome of the election or created a situation that rendered

determining the true will of the voters impossible. See Wooley, 387 S.W.2d at 741–42;

see also Wright, 520 S.W.2d at 793.                In other words, even assuming there were

violations of the provisions of the election code governing who can receive assistance at

the polls, those provisions are merely directory, and appellants' ultimate burden was to

produce more than a scintilla of evidence that the alleged irregularities affected the

outcome of the election.         See Wright, 520 S.W.2d at 793; Wooley, 387 S.W.2d at

741–42. Appellants produced no such evidence and, as a result, failed to meet their

burden. In light of the foregoing, we cannot conclude the trial court erred in granting

no-evidence summary judgment to appellees. See TEX. R. CIV. P. 166a(i); Macias, 988

S.W.2d at 317. Appellant's first three issues are overruled.1

                                           V. Conclusion

        We affirm the judgment of the trial court.


                                                                          NELDA V. RODRIGUEZ
                                                                          Justice

Delivered and filed the 7th
day of February, 2013.




        1
           Having concluded that the trial court did not err in granting appellees' no-evidence summary
judgment, we need not address appellants' issues regarding the traditional motion for summary judgment.
See TEX. R. APP. P. 47.1; see also E. Hill Marine, Inc. v. Pinker Boat Co., 229 S.W.3d 813, 816 (Tex.
App.—Fort Worth 2007, pet. denied) (explaining that if the movant has filed a proper no-evidence motion for
summary judgment and the non-movant has failed to produce more than a scintilla of evidence under the
standards of rule 166a(i), there is no need to analyze whether the movant's summary judgment proof
satisfied the burden set forth for traditional summary judgment under rule 166a(c)).
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