                                   NO. 07-07-0427-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                    JULY 3, 2008
                          ______________________________

                            JIMMY MCCURRY, APPELLANT

                                             V.

                              KENT LEWIS, APPELLEE
                        _________________________________

              FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

                   NO. 17,092; HONORABLE FELIX KLEIN, JUDGE
                        _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                         OPINION


       In this appeal of an election contest, appellant and contestee below Jimmy McCurry

asks us to set aside the trial court’s judgment voiding the November 2006 general election

for Lamb County commissioner precinct two and reinstate the original final canvas, which

showed him the winner over appellee and contestant below Kent Lewis. Finding the trial

court did not abuse its discretion in declaring the election void, we affirm its judgment.
                                        Background


       Following the November 27, 2006, final canvassing of votes in the election for Lamb

County commissioner precinct two, McCurry appeared the winner by a margin of three

votes. Lewis filed an election contest on December 21 inter alia complaining that an error

in voter registration rolls prevented over a dozen persons from voting for Lewis. A bench

trial was held October 4, 2007, and at its conclusion the court found it could not declare the

true outcome of the election. It declared the election void and ordered a new election.

McCurry requested and obtained findings of fact and conclusions of law and timely

appealed. Among its findings, the court found an election official1 prevented eligible voters

from voting and the number of eligible voters prevented from voting “was sufficient to have

or could have changed the outcome of the election.”


           Issue One: Is timely notice to the Secretary of State jurisdictional?


       McCurry presents four issues. In his first issue, McCurry argues the trial court was

without subject matter jurisdiction of the election contest because Lewis did not deliver a

copy of his petition to the Texas Secretary of State within the time required by the Election




       1
       “Election official” means an election officer or other person officially involved in the
administration of the election. Tex. Elec. Code Ann. § 221.003(a)(2)(A) (Vernon 2003).

                                              2
Code.2 We review a trial court’s order granting or denying a plea to its subject matter

jurisdiction de novo. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007).


       It is undisputed that Lewis delivered a copy of his petition to the secretary of state

on January 11, 2007, some forty-five days after the election’s official result was

determined. McCurry filed a plea to the trial court’s jurisdiction asserting the untimely

delivery of the petition to the secretary of state deprived the court of jurisdiction. The court

denied McCurry’s jurisdictional challenge on the day of trial. In a conclusion of law, it held

that delivery of notice to the secretary of state is an administrative act and failure to strictly

comply was not jurisdictional.




       2
           Election Code § 232.008, entitled “Filing Period for Petition,” provides:

       (a) A contestant may not file the petition in an election contest earlier than
       the day after election day.

       (b) Except as provided by Subsection (c), a contestant must file the petition
       not later than the 30th day after the date the official result of the contested
       election is determined.

       (c) A contestant must file the petition not later than the 10th day after the
       date the official result is determined in a contest of:

                (1) a primary election; or

                (2) a general or special election for which a runoff is necessary
                according to the official result or will be necessary if the contestant prevails.

       (d) A contestant must deliver a copy of the petition to the secretary of state
       by the same deadline prescribed for the filing of the petition.

Tex. Elec. Code Ann. § 232.008 (Vernon 2003). Hereinafter all statutory citations
designated only by the word “section” are to Tex. Elec. Code Ann. (Vernon 2003).

                                                   3
       In support of his jurisdictional argument, McCurry contends that prior to enactment

of the current Election Code in 1985 a substantial body of caselaw developed for the

proposition that notice of a contest suit was jurisdictional.3 The Austin Court of Appeals,

however, held in Honts v. Shaw, 975 S.W.2d 816, 820 (Tex.App.–Austin 1998, no pet.),

that the requirement of section 232.008(d) is not jurisdictional. We agree with the Austin

court’s holding, and the rationale expressed in its opinion.


       McCurry argues Honts was wrongly decided. He points to caselaw holding that

when the legislature amends a statute, it is presumed to have taken notice of its prior

interpretation by the courts.      See Walker v. Thetford, 418 S.W.2d 276, 292

(Tex.Civ.App.–Austin 1967, writ ref’d n.r.e.). McCurry contends the legislature thus is

presumed to have been aware of caselaw holding other requirements set forth in section

232.008 to be jurisdictional, leading to the conclusion it placed the requirement of

notification of the secretary of state within that section with the intention it also be

jurisdictional. A similar argument was rejected by the court in Nichols v. Seei, 97 S.W.3d

882, 884 (Tex.App.–Dallas 2003, no pet.), dealing with the similar notice requirement of

section 233.006(c).4 We reject it here, for the same reasons cited by the Dallas court.



       3
         See Jordan v. Norman, 711 S.W.2d 358, 359 (Tex.App.–Beaumont 1986, no writ)
(decided under former Election Code); Mitchell v. Carroll Indep. Sch. Dist., 435 S.W.2d
280, 283 (Tex.Civ.App.–Fort Worth 1968, writ dism'd w.o.j); Ex parte Progreso Indep. Sch.
Dist., 650 S.W.2d 158, 160 (Tex.App.–Corpus Christi 1983, writ ref'd n.r.e.); Walker v.
Thetford, 418 S.W.2d 276, 280 (Tex.Civ.App.–Austin 1967, writ ref'd n.r.e.).
       4
        Chapter 233 of the Election Code addresses the contest of an election on a
measure. § 233.001. At the same time the legislature enacted § 232.008(d), it amended
§ 233.006 by adding § 233.006(c). Acts 1997, 75th Leg., R.S., ch. 1349, §§ 69, 70, p.
5096. The language of the two provisions is identical.

                                             4
       Finding the trial court did not err by overruling McCurry’s plea to the jurisdiction, we

overrule his first issue.


      Issues Two & Three: Evidence Supporting Trial Court’s Overturning Election


       We will discuss McCurry’s second and third issues together. By his second issue

McCurry challenges the legal sufficiency of the evidence supporting findings of fact two and

three, in which the court found that an election official prevented eligible voters from voting

in a number sufficient to change the election result. McCurry’s third issue contends Lewis

failed to carry his burden of proving the outcome of the election was materially affected by

irregularities of election officials.5


       “The standard of review in an appeal from a judgment in an election contest is a

determination whether the trial court abused its discretion.” 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 when it acts “without reference to any guiding rules and principles.” Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Thus we may not

reverse the judgment of the trial court, if the trial court acted within its discretion, simply

because we might have reached a different result. Id. at 242.


       Under the abuse of discretion standard, the sufficiency of evidence supporting the

trial court’s findings is a factor we consider in determining whether the court abused its

       5
         By cross-issue, Lewis counters that if he must prove the voting intent of eligible
voters then the trial court erred by precluding admission of such evidence. Through an
offer of proof, Lewis preserved testimony that his witnesses intended to vote for him. We
do not reach his cross-issue.

                                               5
discretion. Willet v. Cole, 249 S.W.3d 585, 591 n.4 (Tex.App.–Waco 2008, no pet.); In re

J.R.C., 236 S.W.3d 870, 875 (Tex.App.–Texarkana 2007, no pet.). In a non-jury case,

when the appellate record includes both findings of fact and conclusions of law and a

reporter’s record, we review the sufficiency of the evidence under the same standards

applied in cases tried by jury. Slusher v. Streater, 896 S.W.2d 239, 241 (Tex.App.–Houston

[1st Dist.] 1995, no writ). In reviewing the legal sufficiency of the evidence under a clear

and convincing standard, we look at all the evidence, in the light most favorable to the

judgment, to determine if the trier of fact could reasonably have formed a firm belief or

conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). We

disregard any contrary evidence if a reasonable trier of fact could do so, but we do not

disregard undisputed facts. In re J.L., 163 S.W.3d 79, 85 (Tex. 2005).


       To set aside the outcome of an election, the contestant must prove by clear and

convincing evidence that a violation of the Election Code occurred, and it materially affected

the outcome of the election. See Willet, 249 S.W.3d at 589; Olsen v. Cooper, 24 S.W.3d

608, 610 (Tex. App.–Houston [1st Dist.] 2000, no pet.); Honts, 975 S.W.2d at 822; Slusher,

896 S.W.2d at 241; Tex. Elec. Code Ann. § 221.003 (Vernon 2003).


       A court trying an election contest shall attempt to ascertain whether the outcome

shown by the final canvass was not the true outcome because 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. Tex. Elec. Code Ann. § 221.003

(Vernon 2003).



                                              6
       The outcome of an election is “materially affected” when a different and correct result

would have been reached in the absence of irregularities, see Price v. Lewis, 45 S.W.3d

215, 218 (Tex.App.–Houston [1st Dist.] 2001, no pet.), or irregularities in the conduct of the

election render it impossible to determine the majority of the voters’ true will. Guerra v.

Garza, 865 S.W.2d 573, 576 (Tex.App.–Corpus Christi 1993, writ dism’d w.o.j.); Frias v.

Board of Trustees, 584 S.W.2d 944, 948 (Tex.Civ.App.–El Paso 1979, writ ref’d n.r.e.), cert.

denied, 444 U.S. 996, 100 S.Ct. 531, 62 L.Ed.2d 426 (1979); Tex. Elec. Code Ann. §

221.012(b) (Vernon 2003).


       The facts leading to the contest are largely undisputed. Because officials used a

map containing errors when precincts were redistricted after the 2000 census, some Lamb

County registered voters were assigned, by mistake, to election precinct two, when they

actually resided in election precinct six.6 Election precinct six is within Lamb County

commissioners’ precinct two, election precinct two is not. At the 2006 general election, the

voting box for election precinct two was located at the Littlefield junior high school, and the

box for election precinct six was located at the Texas Department of Transportation building.

Because commissioner precinct two did not include the area within election precinct two,

the election for commissioner precinct two did not appear on the ballot given voters at the

junior high school. Lamb County voter registrar Linda Charlton learned of the errors in the

residents’ election precinct assignment within thirty days of the election but testified this was

an insufficient period for remedial measures. She believed affected voters could vote

provisionally but decided to leave the matter to the election judges.


       6
           The mistake affected voters residing in a small area of Littlefield, the county seat.

                                                 7
       Rusty Smith testified he presented for voting at the TxDOT building but was told to

call the courthouse because his name did not appear on the voting list although he was a

registered voter. An unidentified person at the courthouse directed Smith to the junior high

school where he voted a ballot that did not include the precinct two commissioner’s election.


       Rudy Ayala had voted in election precinct two at the junior high school for about forty

years. While voting in the 2006 general election, he noticed his ballot did not include the

precinct two commissioner’s election. Ayala pointed out the omission to an election judge

who told him, “‘If his name is not on there, you don’t vote.’”


       Albert Ayala is the son of Rudy Ayala. Albert chose to vote electronically and like his

father pointed out to an election judge that the precinct two commissioner’s race was absent

from the ballot. Like his father, Albert was told he could not vote in that race if the candidate

did not appear on the ballot. Albert testified the election judge made a telephone call, but

he was not offered a provisional ballot or other possible solution.


       Mary Cristan attempted to vote at the Littlefield city hall but was directed to the junior

high school where she voted a straight party ticket on a paper ballot. After the election, she

learned from Lewis that the precinct two commissioner’s race did not appear on the ballot

at the junior high school.


       Geneva Logan lived at the same Littlefield address for over forty years and always

voted at the junior high school. For the 2006 general election, her name was on the voter

list at the junior high school and she voted a straight ticket on a paper ballot. After voting,

she learned the precinct two commissioner’s race did not appear on the ballot.

                                               8
       Amanda Hodge participated in early voting at the city hall and noticed the precinct

two commissioner’s race did not appear on the ballot she received. When she inquired of

an election official about the absence, Hodge was told the ballot was correct according to

the information on Hodge’s voter registration card.


       On election day, Robert Rivas went to the Lamb County courthouse and asked

where he should vote. An unidentified person, checking voter registration cards, directed

him to the junior high school. Rivas’ name appeared on the voting list at the junior high

school but the precinct two commissioner’s election did not appear on his ballot.


       Molly Rivas is the wife of Robert Rivas. Her voter registration card specified she vote

at the junior high school but she learned from her husband that the precinct two

commissioner’s race did not appear on the ballot at the school. Shortly before the polls

closed, Molly went to the polling place at the TxDOT building. An election official told her

the commissioner’s race appeared on the ballot at that location but the voting list did not

include her name. An election official at that location called Charlton about Molly’s situation

and was told to allow Molly’s vote.


       Were eligible voters prevented from voting by an election official?


       The trial court found seven of Lewis’ trial witnesses were eligible voters but were

prevented from voting in the precinct two commissioner’s race.7 McCurry contends the

evidence conclusively establishes each of the voter-witnesses voted, and that no election


       7
      We refer to the seven, Mary Cristan, Amanda Hodge, Geneva Logan, Albert Ayala,
Rudy Ayala, Rusty Smith, and Robert Rivas, as the “voter-witnesses.”

                                              9
official, therefore, could have prevented them from voting. But the question is not whether

they voted in other races in the 2006 general election; rather, the inquiry is whether election

officials prevented eligible voters from voting in the election for commissioner, precinct two.

No evidence countered the testimony of the seven voter-witnesses that they did not vote

in the election for commissioner, precinct two because the race did not appear on the ballot.


       McCurry next argues there was no evidence that an election official prevented an

eligible voter from voting. According to trial testimony, Smith, Cristan, and Robert Rivas

were directed by an election official to a polling place where they received a ballot that did

not contain the precinct two commissioner’s race. Rudy Ayala and Albert Ayala questioned

the absence of the commissioner’s race from their ballots and were told by an election

official that they could not vote for a candidate whose name did not appear on the ballot.

An election official at city hall told Hodges that the ballot she received, which did not contain

the precinct two commissioner’s race, was correct according to the information on her voter

registration card. Election registrar Charlton was aware of an error in the voter registration

cards but left handling the matter to the election judges.


       Viewing all the evidence in the light most favorable to the court’s finding, we find the

court as fact finder could have formed a firm belief or conviction that election officials

prevented eligible voters from voting in the precinct two commissioner’s race. The trial court

did not act on legally insufficient evidence. See J.F.C., 96 S.W.3d at 266.




                                               10
       Did the prevention of voting by eligible voters materially affect the election outcome?


       McCurry’s third issue rests on the premise that, to show the prevention of voting by

eligible voters materially affected the election’s outcome, Lewis was required to prove that

a sufficient number of the voters prevented from voting would have voted for him to have

changed the election’s outcome.


       In support of his contention, McCurry refers us to Price, 45 S.W.3d 215. There Price

won an election over Lewis for the district one seat on the Galveston city council by a 69-

vote margin. Lewis contested the election, and evidence showed that ballots for the district

one and district two races should have been available at one polling place but only district

two race ballots were distributed to the polling place on election day. The trial court found

that 28 voters who lived in district one were improperly permitted to vote in the district two

race, and that an unknown number of other voters left the polls without voting. The trial

court concluded it could not ascertain the true winner of the election, declared it void, and

ordered a new election. Price appealed. The appellate court framed the burden of proof

for Lewis: “Did Lewis meet her burden of proof to show by clear and convincing evidence

that at least 69 voters were prevented from voting for her as a result of the ballot defect?”

Id. at 221. In finding Lewis did not discharge this burden, the court noted that even if the

28 miscast votes had been cast for Lewis there was not sufficient proof that at least 41

other voters were turned away without voting and their votes would have gone to Lewis. Id.


       The evidence in Olsen, 24 S.W.3d 608 also cited by McCurry, was like that in Price.

The contestant Cooper lost the race by 75 votes. Although evidence showed that some


                                             11
number of votes were affected by a ballot error and a locked door to the voting place, the

appellate court found no clear and convincing evidence that 75 voters were prevented from

voting. Id. at 613.


       In neither Olsen nor Price did the evidence clearly and convincingly show that the

gross number of voters denied the vote by an election official, without regard to which

candidate a voter favored, was sufficient to have changed the outcome of the election.

Price, 45 S.W.3d at 221; Olsen, 24 S.W.3d at 613. Thus, neither case is dispositive of the

issue before us.


       Moreover, for two reasons, we do not read Price for the proposition that when voting

by eligible voters is prevented by an election official the contestant must prove both the

number of those prevented from voting and their intended vote. First, such a reading

conflicts with Texas Supreme Court caselaw. See Duncan v. Willis, 157 Tex. 316, 326-27

& 327 n.2, 302 S.W.2d 627, 634-35 & 635 n.2 (1957) (election code does not authorize

voter to testify, after the election, how he or she intended to vote). Second, such a reading

runs contrary to an express provision of the Election Code. Under section 221.009(b), an

election contested because of illegal votes may be declared void if the number of illegal

votes was sufficient to have changed the election’s outcome, without a determination of how

individual voters voted. Tex. Elec. Code Ann. § 221.009(b) (Vernon 2003); see Gonzales

v. Villarreal, 251 S.W.3d 763, ___ (Tex.App.–Corpus Christi 2008, pet. dism’d w.o.j.);




                                             12
Alvarez, 844 S.W.2d at 242 (both noting § 221.009); cf. Tex. Elec. Code Ann. 221.012(b)

(court shall declare election void if it cannot ascertain true outcome).8


       Despite his reliance on Price, McCurry also argues Lewis could not properly show

at trial the intended vote of the voter-witnesses and without this evidence he could not meet

his burden of proof. We agree with McCurry that sound policy prohibits a voter from

testifying in an election contest how the voter intended to vote. See Duncan, 157 Tex. at

327-28, 302 S.W.2d at 635 (quoting Davis v. State ex rel. Wren, 75 Tex. 420, 428, 12 S.W.

957, 960 (1889)). But we do not agree such evidence was essential to the finding that

prevention of voting by eligible voters materially affected the election’s outcome. Texas law

has long provided otherwise. “If the right of a voter to vote has been denied to any person

duly qualified, it may be shown in case of a contest. And if the number of voters whose right

has been so denied is large enough to materially affect the result it will vitiate the election.”

McCormick v. Jester, 115 S.W. 278, 285 (Tex.Civ.App. 1909, writ dism’d) (citing McCreary

on Elecs., § 527 (4th ed.)). An election’s outcome may be materially affected if irregularities

in the conduct of the election render impossible a determination of the majority of the voters’

true will. Guerra, 865 S.W.2d at 576. By the final canvas of votes in the contested race,

McCurry prevailed by three votes. In a finding supported by clear and convincing evidence,

the trial court found election officials prevented the seven voter-witnesses from voting in the

race. Having made such a finding, it was the task of the trial court to ascertain and declare



       8
         In addition, McCurry’s position that a contest based on the prevention of eligible
voters from voting requires proof both of a sufficient number of voters to affect the outcome
and their intended vote, would appear to render nugatory § 221.012(b) in such cases,
because the court could make a calculation and ascertain the true outcome of the election.

                                               13
the true outcome of the election and, if unable to so, to declare the election void. See Tiller,

974 S.W.2d 769, 772; Tex. Elec. Code Ann. §§ 221.003(a)(2)(A) & 221.012(a),(b) (Vernon

2003). Unable to declare the true outcome of the election, the trial court did not abuse its

discretion by declaring it void. See Tex. Elec. Code Ann. § 221.012 (b). McCurry’s second

and third issues are overruled.


           Issue Four: Were voters required to mitigate the effect of preventive acts
                                     by election officials?


       In his final issue, McCurry challenges the evidentiary strength supporting the court’s

finding of fact number fourteen wherein it found the voter-witnesses “‘were prevented from

voting in the election for County Commissioner, Precinct No. 2, Lamb County, Texas, by an

election official or other persons officially involved in the administration of the election.’”

According to McCurry, the finding is not established by clear and convincing evidence for

the singular reason that none of the voter-witnesses “attempted to properly cast a ballot in

this race.” His argument points to actions he asserts the voters could, and should, have

taken to vote in the race despite their mistaken election precinct assignments.9 We do not

agree that the voters’ failure to take such actions precluded the trial court from finding they

were prevented by election officials from voting in the county commissioner’s race. We

overrule McCurry’s final issue.




       9
       For instance, McCurry says the voters could have insisted on a “not on list” affidavit
under Election Code section 63.007. Tex. Elec. Code Ann. § 63.007 (Vernon 2003).

                                               14
Having overruled each of McCurry’s issues, we affirm the judgment of the trial court.




                                          James T. Campbell
                                              Justice




                                     15
