                   COURT OF APPEALS

             THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI - EDINBURG

                   NUMBER 13-14-00228-CV

MARLA CUELLAR,                                         Appellant,

                               v.

OMAR MALDONADO,                                         Appellee.


             On appeal from the 206th District Court
                   of Hidalgo County, Texas.


                   NUMBER 13-14-00230-CV

REY ORTIZ,                                             Appellant,

                               v.

LUIS MANUEL SINGLETERRY,                                Appellee.


             On appeal from the 92nd District Court
                                 of Hidalgo County, Texas.


                             MEMORANDUM OPINION
                  Before Justices Garza, Benavides, and Perkes
                   Memorandum Opinion by Justice Benavides
        In these consolidated appeals, we address an identical issue in two separate, but

related, election contests:        whether the trial court erred by granting a plea to the

jurisdiction in favor of each respective appellee-contestee.                For the reasons stated

below, we reverse and remand both cases.

                                        I.      BACKGROUND

        A. Appellate Cause Number 13-14-00228-CV (Cuellar v. Maldonado)

        Appellant-contestant Marla Cuellar and appellee-contestee Omar Maldonado were

candidates in the 2014 Hidalgo County Court at Law No. 8 Democratic Primary Election.

Of the 41,409 votes cast in this race, Maldonado garnered 21,457 votes, or 51.82 percent;

Cuellar received 17,353 votes, or 41.91 percent; and a third candidate, Julian Castañeda,

received 2,599 votes, or 6.28 percent.         Castañeda is not a party to this appeal. Cuellar

filed the present election contest almost two weeks after the final canvass of the primary

election.1

        Cuellar attached various exhibits to her petition, including:              (1) a handwritten

incident report filed with the Hidalgo County Election Department by voter Benito Garza




        1A “final canvass” means the canvass from which the official result of an election is determined.
See TEX. ELEC. CODE ANN. § 1.005(5) (West, Westlaw through 2013 3d C.S.).



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(“the Garza incident report”), which outlines a voting irregularity that he experienced while

using Hidalgo County’s electronic voting machines;2 (2) an affidavit from Richard Alvarez,

of the Hidalgo County Judge’s office, which corroborates Garza’s incident report (“the

Alvarez affidavit”); and (3) letters from Cuellar and other candidates addressed to Hidalgo

County Judge Ramon Garcia requesting a “forensic expert” to “inspect each voting

machine to ensure that they have not malfunctioned or been subjected to fraud or

tampering.”

       After answering the instant suit, Maldonado filed a plea to the jurisdiction and

asserted the trial court lacked subject matter jurisdiction over the contest because “no

facts” had been asserted by Cuellar “concerning the casting or counting of improper or

illegal ballots for County Court at Law No. 8.” Specifically, Maldonado argued that the

“one affidavit” and “one incident report” relied on by Cuellar involves the district attorney’s

race and not the race at issue.          Prior to the hearing on the plea to the jurisdiction,

Maldonado also filed a motion for directed verdict which essentially asserts that there is

no evidence to support Cuellar’s contentions in this election contest.

       On April 11, 2014, the trial court held a hearing and granted Maldonado’s plea.

As a result, the trial court did not rule on the pending motion for directed verdict.              An

accelerated appeal followed, see TEX. ELEC. CODE ANN. § 232.014 (West, Westlaw

through 2013 3d C.S.), and this Court ordered an expedited briefing schedule.                     See




         2 According to Garza, he attempted to vote numerous times for the incumbent district attorney,

Rene Guerra, but the machine switched his vote to Guerra’s opponent. Garza’s report further states that
he alerted election workers who cancelled his ballot and allowed him to vote on another voting machine
without issue.



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Cuellar v. Maldonado, No. 13-14-00228-CV, slip op. at 2 (Tex. App.—Corpus Christi April

24, 2014, no pet.) (per curiam).

        B. Appellate Cause Number 13-14-00230-CV (Ortiz v. Singleterry)3

        Appellant-contestant Rey Ortiz and appellee-contestee Luis Manuel Singleterry

were candidates in the 2014 Hidalgo County 92nd District Court Democratic Primary

Election. Of the 41,738 votes cast in this race, Singleterry received 24,127 votes, or

57.79 percent; Ortiz received 12,466 votes, or 29.86 percent; and a third candidate,

Miguel Wise, received 5,145 votes, or 12.35 percent. Wise is not a party to this appeal.

Ortiz filed the present election contest two weeks after the final canvass of votes.              Ortiz

attached the same exhibits that Cuellar attached to her petition, including:            (1) the Garza

incident report; (2) the Alvarez affidavit; and (3) correspondence from Ortiz and other

candidates addressed to Judge Garcia regarding the “numerous inconsistencies and

discrepancies” in various races on the Democratic Primary ballot.

        In his answer to the contest, Singleterry included a plea to the jurisdiction and

special exceptions.      Singleterry’s answer also asserted that Ortiz could not meet his

burden of proof to change the outcome of the election.           Specifically, the plea asserts that

Ortiz’s “pleadings and evidence” affirmatively negated the trial court’s jurisdiction.

Singleterry’s plea focuses on the Garza incident report.               Singleterry argued that the

Garza incident report did not mention any problems with regard to the 92nd District Court

Democratic Primary.          Furthermore, Singleterry argued that Ortiz presented “no



        3On May 12, 2014, Singleterry filed a motion for leave to file his brief late in this appeal. We
hereby grant Singleterry’s motion for leave and will consider his brief in our review of this case.



                                                   4
actionable controversy for the trial court’s review,” and even assuming that Garza’s vote

was miscast in the 92nd District Court race, it is insufficient to change the outcome of the

election.

         On April 11, 2014, the trial court held a hearing and granted Singleterry’s plea.

An accelerated appeal followed, see id. § 232.014, and this Court ordered an expedited

briefing schedule.    See Ortiz v. Singleterry, No. 13-14-00230-CV, slip op. at 2 (Tex.

App.—Corpus Christi April 24, 2014, no pet.) (per curiam).

                                II.   STANDARD OF REVIEW

         A plea to the jurisdiction is a dilatory plea generally used to defeat an action

“without regard to whether the claims asserted have merit.”     Mission Consol. Ind. Sch.

Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (quoting Bland Ind. Sch. Dist. v. Blue,

34 S.W.3d 547, 554 (Tex. 2000)).      Essentially, the plea challenges the court’s power to

adjudicate a case.    Heckman v. Williamson County, 369 S.W.3d 137, 149 (Tex. 2012).

Whether a court has subject-matter jurisdiction is a question of law that we review de

novo.     See Tex. Nat. Res. Conserv. Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.

2002).

         Typically, the plea challenges whether the plaintiff has alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the case.   Garcia, 372 S.W.3d

at 635 (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).

In this situation, we determine if the pleader has alleged facts that affirmatively

demonstrate the court's jurisdiction to hear the cause.   Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the pleadings liberally in favor




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of the plaintiffs and look to the pleaders’ intent.    Id.     If the pleadings do not contain

sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not

affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency, and the plaintiffs should be afforded the opportunity to amend.           Id.   If the

pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction

may be granted without allowing the plaintiffs an opportunity to amend.          Id.

        A plea to the jurisdiction may also challenge the existence of jurisdictional facts.

See Garcia, 372 S.W.3d at 635.          In this situation, we consider relevant evidence

submitted by the parties when necessary to resolve the jurisdictional issues raised, as the

trial court is required to do.    Miranda, 133 S.W.3d at 227 (citing Bland, 34 S.W.3d at

555).    This standard mirrors that of a traditional summary judgment motion.                 See

Garcia, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 227.           Initially, the defendant carries

the burden to meet the summary judgment proof standard for its assertion that the trial

court lacks jurisdiction.   Garcia, 372 S.W.3d at 635.          If it does, the plaintiff is then

required to show that a disputed material fact exists regarding the jurisdictional issue.

Id.   If a fact issue exists, the trial court should deny the plea.     Id.   But if the relevant

evidence is undisputed or the plaintiff fails to raise a fact question on the jurisdictional

issue, the trial court rules on the plea as a matter of law.    Id.

        In sum, the burden is on the plaintiff to affirmatively demonstrate the trial court’s

jurisdiction.   Heckman, 369 S.W.3d at 150.         When assessing a plea, our analysis

begins with the live pleadings.    Id. We may also consider evidence submitted to negate

the existence of jurisdiction, and we must consider evidence when necessary to resolve




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the jurisdictional issue. Id. When considering evidence, the court should “confine itself

to the evidence relevant to the jurisdictional issue.”               Blue, 34 S.W.3d at 555.

                                                III.     DISCUSSION

        Each cause in this consolidated opinion calls upon this Court to answer the same

limited question:         has the appellant-contestant affirmatively demonstrated the trial

court’s jurisdiction?4

        The district court has exclusive original jurisdiction of an election contest, with a

few exceptions.        See TEX. ELEC. CODE ANN. § 221.002 (West, Westlaw through 2013 3d

C.S.). When hearing an election contest, the district court shall attempt to ascertain

whether the outcome of the contested election, 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. Id. § 221.003 (West, Westlaw through 2013 3d C.S.). An “illegal

vote” is defined as a “vote that is not legally countable.”                Id. § 221.003(b).

        Thus, the trial court in this case has the power to hear this election contest if the

contestant alleged in pleadings that (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.                 See id. §§ 221.002; 221.003.



        4Our inquiry today is limited solely to the question of the trial court’s jurisdiction to hear the contests.
Thus, we will not address the merits of either contest.



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       With this framework in mind, we now examine each cause.

       A. Appellate Cause Number 13-14-00228-CV (Cuellar v. Maldonado)

       In appellate cause number 13-14-00228-CV, Maldonado’s plea specifically asserts

that Cuellar alleged “no facts” “concerning the casting or counting of improper or illegal

ballots . . . which cast doubt on the validity of the primary election results of County Court

[at Law] No. 8.”

       Cuellar asserted in her original petition that she

       will prove by clear and convincing evidence that a sufficient number of illegal
       votes were counted to affect the outcome of the election; that either through
       malfunction or illegal manipulation, who voted for one candidate had their
       votes re-cast for other candidates and that persons who voted for Marla
       Cuellar had their votes counted for one of the other candidates . . . ; election
       machines either malfunctioned or were illegally tampered with to affect the
       outcome of the election . . . ; election officials or other persons officially
       involved in the administration of the election witnessed that election
       machines appeared to either malfunction or were tampered with so that the
       outcome of the election was affected . . . ; many complaints were brought
       to the attention of the Hidalgo County Elections Administrator to raise
       doubts concerning the accuracy of the election results and of the function
       of the election machines . . . ; the election process failed to count legal votes,
       and/or engaged in other fraud or illegal conduct or made mistakes that
       precluded an accurate count of the vote [sic] cast.

       A liberal view of this pleading reveals that Cuellar alleges that “a sufficient number”

of illegal votes were counted so as to affect the outcome of the Hidalgo County Court at

Law No. 8 Democratic Primary race due to the “malfunction” or “illegal manipulation” of

the electronic voting machines utilized by the Hidalgo County Elections Department.

Furthermore, Cuellar alleges that complaints about the malfunctioning voting machines

were made to the Hidalgo County Elections Administrator and that the elections officials

“failed to count legal votes and/or engaged in other fraud or illegal conduct or made




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mistakes that precluded an accurate count of the vote cast.”          These allegations are

within the statutory scope of inquiry given to district courts that hear election contests.

See TEX. ELEC. CODE ANN. §§ 221.002; 221.003.

       Maldonado argues, however, that because Cuellar attached only one affidavit and

one incident report related to election irregularities, and because that evidence did not

relate to her particular race, but instead to the race for Hidalgo County District Attorney,

Cuellar failed to assert facts to properly invoke the trial court’s jurisdiction. We disagree.

       The evidence attached to Cuellar’s petition neither negates the existence of the

trial court’s jurisdiction nor is it necessary to resolve the jurisdictional issue before us.

See Blue, 34 S.W.3d at 555.          Instead, we interpret Cuellar’s offered evidence as

general supplemental and contextual background supporting Cuellar’s pleadings related

to her specific allegations of illegal vote casting, “illegal manipulation” or “malfunctioning”

of the electronic voting machines, and failure to count legal votes and/or engagement in

other fraud or illegal conduct by the Hidalgo County Elections Administrator to preclude

an accurate count of the votes cast.    See id.

       Therefore, after construing Cuellar’s pleadings liberally, taking all factual

assertions as true, and looking at Cuellar’s intent, see Miranda, 133 S.W.3d at 226, we

conclude that Cuellar affirmatively demonstrated the trial court’s jurisdiction to hear this

election contest. See Heckman, 369 S.W.3d at 150.

       We sustain Cuellar’s sole issue on appeal.

       B. Appellate Cause Number 13-14-00230-CV (Ortiz v. Singleterry)

       In appellate cause number 13-14-00230-CV, Singleterry asserts in his plea that




                                              9
Ortiz’s pleadings and evidence affirmatively negated the trial court’s jurisdiction. We

disagree.

      Ortiz’s petition states that he

      will prove by clear and convincing evidence that a sufficient number of illegal
      votes were counted to affect the outcome of the election; that either through
      malfunction or illegal manipulation, voters who voted for one candidate had
      their votes re-cast for other candidates and that persons who voted for . . .
      Ortiz had their votes counted for one of the other candidates . . . ; election
      machines either malfunctioned or were illegally tampered with to affect the
      outcome of the election . . . ; election officials or other persons officially
      involved in the administration of the election witnessed that election
      machines appeared to either malfunction or were tampered with so that the
      outcome of the election was affected . . . ; many complaints were brought
      to the attention of the Hidalgo County Elections Administrator to raise
      doubts concerning the accuracy of the election results and of the functioning
      of the election machines . . . ; the election process failed to count legal votes,
      and/or engaged in other fraud or illegal conduct or made mistakes that
      precluded an accurate count of the vote [sic] cast.

      After construing this pleading liberally, we conclude that Ortiz alleges that “a

sufficient number” illegal votes were counted so as to affect the outcome of the 92nd

District Court Democratic Primary.      Ortiz further alleges that votes intended for Ortiz

were re-cast for other candidates as a result of “malfunction or illegal manipulation.”

Furthermore, Ortiz alleges that complaints about the malfunctioning voting machines

were made to the Hidalgo County Elections Administrator and that the elections officials

“failed to count legal votes and/or engaged in other fraud or illegal conduct or made

mistakes that precluded an accurate count of the vote cast.” Such allegations are within

the statutory scope of inquiry given to district courts that hear election contests.       See

TEX. ELEC. CODE ANN. §§ 221.002; 221.003.

      Additionally, as in appellate cause number 13-14-00228-CV, the evidence




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attached to Ortiz’s petition neither negates the existence of the trial court’s jurisdiction nor

is it necessary to resolve the jurisdictional issue before us.   See Blue, 34 S.W.3d at 555.

Instead, we construe this evidence as a supplement to Ortiz’s petition, designed to put

Ortiz’s allegations in context and explain the intent of his election contest, even though

the Garza incident report and Alvarez affidavit relate to a race other than the 92nd District

Court Democratic Primary.

       Therefore, after construing Ortiz’s pleadings liberally, taking all factual assertions

as true, and looking at Ortiz’s intent, see Miranda, 133 S.W.3d at 226, we conclude that

Ortiz affirmatively demonstrated the trial court’s jurisdiction to hear this election contest.

See Heckman, 369 S.W.3d at 150.

                                     IV.    CONCLUSION

       We reverse the trial court’s orders granting Maldonado’s and Singleterry’s pleas to

the jurisdiction in appellate cause numbers 13-14-00228-CV and 13-14-00230-CV,

respectively. We remand both cases for further proceedings consistent with this opinion.




                                                           __________________________
                                                           GINA M. BENAVIDES,
                                                           Justice


Delivered and filed the
16th day of May, 2014.




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