                                 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
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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.

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                                      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



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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.



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                 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.

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