                                                                                    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




                                                         26
                     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
