                                  NO. 07-08-00367-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                      MAY 21, 2010


                               JON JONES, APPELLANT

                                             v.

                           AMADO Z. MORALES, APPELLEE


                FROM THE 110TH DISTRICT COURT OF FLOYD COUNTY;

                 NO. 9894; HONORABLE H. BRYAN POFF, JR., JUDGE


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


                                         OPINION


       In this appeal of an election contest, appellant and contestee below Jon Jones

asks us to reverse the trial court=s judgment finding appellee and contestant below

Amado Morales the winner of the November 2006 general election for Floyd County

commissioner precinct four, and render judgment declaring Jones the winner. Finding

the trial court did not abuse its discretion in adjudging Morales the winner, we will affirm

its judgment.
                                         Background


       The outcome of the commissioner=s race between Jones and Morales was close.

The initial canvas showed Jones the winner by three votes.              Morales requested a

recount which tallied Jones the winner by four votes. Morales then filed the underlying

election contest in December 2006. According to Morales=s petition, the county=s early

voting ballot board 1 wrongly rejected A5-7 mail-in ballots.@ The issues for Morales at trial

devolved to whether the ballot board incorrectly rejected the mail-in ballots of voters

Maldonado, De Los Santos, Castillo, Olivo, and Vargas 2 and whether two voters were

wrongly denied precinct four ballots. Each of the uncounted voters voted for Morales.

Trial began in June 2008 but was recessed until September because Vargas was

hospitalized.   Judgment was for Morales as the court concluded the votes of the

uncounted voters should have been included in the total and this omission materially

affected the outcome of the election. Thus Morales was adjudged winner of the election

by one vote. This appeal followed.




       1
        The Election Code requires creation of an early voting ballot board and
empowers it to screen early voting ballots. See Tex. Elec. Code Ann. '' 87.001-.005 &
87.041 (Vernon 2010). We will cite the current version of the Election Code unless
otherwise indicated.
       2
         In its findings of fact and conclusions of law, the trial court collectively identified
Maldonado, De Los Santos, Castillo, Olivo, and Vargas as Athe uncounted voters.@ We
also refer to them collectively in that manner.

                                               2
                                           Issue


       Jones argues the trial court abused its discretion by rendering judgment for

Morales.   Through multiple sub-issues he contends the uncounted voters did not

properly execute documents required for voting by mail, Maldonado received improper

assistance voting by mail, the ballot of De Los Santos was improperly transported to the

early voting clerk, and his motion to dismiss for want of prosecution was improperly

denied. By cross-issue, Morales argues the trial court abused its discretion by failing to

find two voters were improperly denied precinct four ballots.


                                         Analysis


Appellate Jurisdiction


       In the trial court, Jones filed a motion to dismiss the case for want of prosecution.

The clerk=s record contains an AOrder Granting Motion to Dismiss@ signed December 20,

2007, a judgment signed September 19, 2008, and Jones=s notice of appeal filed on

September 19. If the case was dismissed for want of prosecution on December 20, we

lack appellate jurisdiction. See Tex. R. App. P. 26.1 & 26.3. Therefore, on our own

motion, we first consider our jurisdiction of this appeal. See Buffalo Royalty Corp. v.

Enron Corp., 906 S.W.2d 275, 277 (Tex.App.BAmarillo 1995, no writ) (appellate court

required to consider its jurisdiction sua sponte if necessary).


       In the course of discovery, Morales filed a motion to compel the county clerk to

produce the ballots rejected by the ballot board. Jones responded with a motion to

dismiss the case for want of prosecution. On December 20, 2007, the trial court heard

                                             3
the motion. The court was presented an order containing language granting the motion

and ordering that Morales take nothing. By pen and ink, the trial court struck out the

word “granted” and wrote “denied” immediately above. But the court left undisturbed

the sentence ordering that Morales take nothing, and signed the order. Thus the order

purports to deny the motion to dismiss but concludes with language ordering the relief

requested. Given this conflict in the order’s language, we must determine whether the

order is ambiguous and if so the intention of the trial court.


       AThe same rules of interpretation apply in construing the meaning of court orders

as in ascertaining the meaning of other written instruments.@ Lal v. Harris Methodist

Fort Worth, 230 S.W.3d 468, 474 (Tex.App.BFort Worth 2007, no pet.). A court may

consider on its own motion whether a document is ambiguous. In re Golden Peanut

Co., LLC, 269 S.W.3d 302, 313-14 (Tex.App.BEastland 2008, orig. proceeding).

Whether a document is ambiguous is a question of law. Tuthill v. Southwestern Public

Service Co., 614 S.W.2d 205, 211 (Tex.Civ.App.BAmarillo 1981, writ ref=d n.r.e.). A

document is not ambiguous if as worded it can be given a definite or certain legal

meaning.    Kelly-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.

1998). But a document is ambiguous if its meaning is reasonably susceptible to two or

more reasonable interpretations. Id.


       We find the December 20 order ambiguous.              On one hand, it denies the

underlying motion to dismiss for want of prosecution. But on the other, it contains

language finally disposing of the case.




                                              4
       Further, because the order was not produced following a conventional trial on the

merits, we do not presume its finality. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199

(Tex. 2001). Rather, following summary disposition when finality is not clear we look to

the order and the record to determine finality. Id. at 195. And from the record our

inquiry is satisfied.   At the hearing on the motion to dismiss, after the parties’

presentations and in open court, the trial judge orally rendered an order denying Jones=s

motion to dismiss. It then took up the motion to compel, which was granted by an order

signed some twenty days later. On April 25, the court set the case for trial and trial

began on June 24. The case proceeded to final judgment without recorded comment by

the court or the parties regarding the effect of the December 20 order.           The only

reasonable interpretation of the December 20 order is denial of Jones=s motion to

dismiss. The notice of appeal Jones filed following final judgment was timely. We have

jurisdiction of the appeal.


Whether Voting Irregularities Materially Affected the Election Results.


       ATo overturn an election, the contestant has the burden of proving by clear and

convincing evidence that voting irregularities materially affected the election results.@

Tiller v. Martinez, 974 S.W.2d 769, 772 (Tex.App.BSan Antonio 1998, pet. dism=d w.o.j.)

(citing Alvarez v. Espinoza, 844 S.W.2d 238, 242 (Tex.App.BSan Antonio 1992, writ

dism=d w.o.j.), and Guerra v. Garza, 865 S.W.2d 573, 576 (Tex.App.BCorpus Christi

1993, writ dism=d w.o.j.)).   ATo prove that the outcome was materially affected, 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

                                             5
conduct, or mistake.@ Tiller, 974 S.W.2d at 772 (citing Tex. Elec. Code Ann. ' 221.003

(Vernon 1986) and Alvarez, 844 S.W.2d at 242).


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

determination whether the trial court abused its discretion.@ Tiller, 974 S.W.2d at 772.

A trial court abuses its discretion when it acts Awithout reference to any guiding rules

and principles.@ Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985).


         The sufficiency of evidence supporting a trial court’s finding of fact may be a

relevant factor in determining whether the court abused its discretion. In re C.J.H., 79

S.W.3d 698, 702 (Tex.App.BFort Worth 2002, no pet.) (citing Beaumont Bank v. Buller,

806 S.W.2d 223, 226 (Tex. 1991)). 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.BHouston [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 presume that the trier

of fact resolved disputed facts in favor of its findings if a reasonable trier of fact could do

so. Id. 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).




                                              6
       Irregularity of Signatures


       Voting early by mail requires a voter to apply in writing for a ballot and then mail

the completed ballot to the election clerk in an official carrier envelope bearing the

signature of the voter. Alvarez, 844 S.W.2d at 244; Tex. Elec. Code Ann. ' 86.005(c)

(Vernon 2010). The ballot board may accept a ballot voted early by mail Aonly if: . . .

neither the voter=s signature on the ballot application nor the signature on the carrier

envelope certificate is determined to have been executed by a person other than the

voter, unless signed by a witness; . . . .@ Tex. Elec. Code Ann. ' 87.041(b)(2) (Vernon

2010). The law thus requires those who vote early by mail to sign both the application

and the carrier envelope. Alvarez, 844 S.W.2d at 245.


       When a contestant challenges a ballot board=s rejection of a ballot, the ballot

board is presumed to have acted properly and it is the contestant=s burden to show by

clear and convincing evidence the board erred. Alvarez, 844 S.W.2d at 244-45; see

Tiller, 974 S.W.2d at 773-74 (when contestant contends election judge rejected votes

that should have been accepted, rule has long presumed that each rejected ballot was

cast by an illegal voter). Discharging this burden requires the contestant to show the

challenged voter was legally qualified to vote, and the ballot was properly cast. 3 Tiller,

974 S.W.2d at 774; Alvarez, 844 S.W.2d at 244. But if a ballot was rejected for a

       3
           A Aqualified voter@ is a voter who: (1) is age 18 years or older; (2) is a United
States citizen; (3) has not been finally adjudged by a court exercising probate
jurisdiction totally mentally incapacitated or partially mentally incapacitated without the
right to vote; (4) has not been finally convicted of a felony, or if so has satisfied
enumerated requirements; (5) is a resident of this state; and (6) is a registered voter.
Tex. Elec. Code Ann. ' 11.002 (Vernon 2010).

                                             7
reason unrelated to the voter=s qualification, it is unnecessary for the contestant to prove

the qualification of the challenged voter. 4     Tiller, 974 S.W.2d at 774; Alvarez, 844

S.W.2d at 244.


       The ballot board acts on the basis of the signatures before it. Alvarez, 844

S.W.2d at 245. The Election Code does not require the board to make inquiry of voters

whose signatures do not match. Id. But in an election contest based on ballots the

ballot board rejected on the ground of signature deficiency, the district court may

receive oral testimony from the voter or other witnesses regarding the similarity of the

signatures and may compare the signatures. Tiller, 974 S.W.2d at 777; Alvarez, 844

S.W.2d at 245. The court may rely on its own comparison without the aid of expert

testimony. Tiller, 974 S.W.2d at 777; Alvarez, 844 S.W.2d at 245.


       Here, each of the uncounted voters testified.       Each averred they signed the

application and carrier envelope, or in the case of Maldonado, marked the required

signatory lines with a witnessed AX.@ As the trial court candidly told counsel at closing

argument, the question of signature legitimacy presented a classic fact issue between

the uncounted voters= testimony and Jones=s expert who found a signature discrepancy

in the case of each uncounted voter. The trial court resolved the issue in favor of


       4
          On appeal, Jones argues Morales failed to proffer clear and convincing proof
that the uncounted voters were legally qualified to vote. However, there is no record
indication that this issue was raised and joined for trial. The record does not indicate
the ballot board rejected any uncounted voter for lack of qualification. The trial court
and parties tried the case with the burden of proof allocated to Morales to establish that
each of the uncounted voters signed their mail-in ballot application and ballot carrier
envelope.

                                             8
Morales. In so doing, it was the exclusive judge of the credibility of the witnesses, and

the weight to be given their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819

(Tex. 2005). It observed and was free to take into account the candor and demeanor of

the witnesses. It also was free to make its own evaluation of the signatures on the

voters’ applications and ballot envelopes in light of the testimony. Tiller, 974 S.W.2d at

777; Alvarez, 844 S.W.2d at 245 During its oral rendition of judgment, the trial court

noted that “due to their infirmities,” he doubted most of the uncounted voters “would sign

their signature[s] the same twice.”    Implicit in the judgment of the trial court is the

determination that each of the uncounted voters properly signed the application for

ballot by mail and carrier envelope.       The court heard testimony that, if believed,

permitted it to form a firm belief or conviction that its finding was true. The law does not

allow us to disturb the trial court’s credibility determinations. City of Keller, 168 S.W.3d

at 819. We conclude the trial court did not abuse its discretion in sustaining Morales=s

contest as to the votes of the uncounted voters.


       Improper Voter Assistance


       We turn now to Jones=s affirmative claim that illegal ballots were cast for Morales

and these ballots should be excluded from the final count.             Jones argues that

Maldonado received illegal assistance from Morales.


       A voter who is unable to write or see due to a physical disability or who is unable

to read the language of the ballot is eligible for assistance marking the ballot. Tex. Elec.

Code Ann. '' 64.031, 86.010(a) (Vernon 2010). A voter may be assisted in marking the

ballot by a person of the voter=s selection other than the voter=s employer, an agent of
                                             9
the voter=s employer, or an officer or agent of a labor union to which the voter belongs.

Tex. Elec. Code Ann. ' 64.032(c) (Vernon 2010). A person voting by mail may receive

no greater assistance than a person voting at a polling place. Tex. Elec. Code Ann. '

86.010(b) (Vernon 2010). For purposes of § 86.010, assisting a voter with a mail-in

ballot, in the presence of the ballot or carrier envelope, includes reading the ballot to the

voter, directing the voter to read the ballot, marking the ballot, or directing the voter to

mark the ballot. 5 Tex. Elec. Code Ann. ' 64.0321 (Vernon 2010). A person assisting

the voter to prepare a ballot must provide his name, address and signature on the

carrier envelope. Tex. Elec. Code Ann. ' 86.013(c) (Vernon 2010). The assistant must

also sign the oath prescribed in § 64.034 included on the carrier envelope. Tex. Elec.

Code Ann. '' 86.010(c), 86.013(f) (Vernon 2010).


       In its findings of fact, the trial court found each uncounted voter Awas either of

advanced age or exhibited an obvious impediment or infirmity.@ Each testified briefly.

Maldonado, age eighty-eight, testified through an interpreter. Maldonado testified she

signed the application for ballot by mail and the ballot with an AX.@ Her son witnessed

her sign the application and her daughter witnessed her sign the ballot. On cross-

examination, Maldonado was uncertain whether Morales or one of Maldonado’s


       5
         Maldonado’s carrier envelope contains the following printed oath for a person
assisting the voter:

       I swear (or affirm) that I will not suggest by word, sign, or gesture how the
       voter shall vote; I will confine my assistance to answering the voter=s
       questions, to stating propositions on the ballot, and to naming candidate
       (sic) and, if listed, their political parties; and I will prepare the voter=s ballot
       as the voter directs.

                                               10
daughters helped her complete the application. When asked what role Morales played

in assisting her to vote she responded, AWell, heBthe role is that he came to my house,

and my daughters were there and they helped me, but he also helped me.@ Neither

party questioned Maldonado further and Morales did not testify. Thus it is impossible to

ascertain what assistance Morales provided Maldonado. Maldonado’s carrier envelope

does not identify Morales as her assistant.


      Jones points out that in Tiller the court found the trial court abused its discretion

by validating the ballot of assisted voter Trevino whose carrier envelope certificate was

not properly executed. 974 S.W.2d at 775. According to Tiller, AIf the person assisting

the voter fails to sign the carrier envelope certificate, the ballot shall not be counted.

See Tex. Elec. Code Ann. '' 86.005, 86.010(b), 86.012, 86.013(c) (Vernon Supp.

1998).@ Tiller, 974 S.W.2d at 775. After review of the cited sections of the Election

Code, including the 2003 amendments to those sections, we find ourselves in

disagreement on this point with our sister court.     Neither in the cited sections nor

elsewhere in the Election Code can we see a legislative determination that a failure of a

voter’s assistant to complete the required information on the carrier envelope requires

rejection of the voter’s ballot. As noted, statute expressly provides that the ballot of a

voter who is assisted in violation of subsections (a) or (b) of § 86.010 may not be

counted, but the legislature has not disqualified the ballot of a person whose assistant

fails to sign the oath, or provide his name and address, on the carrier envelope. Tex.

Elec. Code Ann. § 86.010(d) (Vernon 2010).




                                              11
      Long-settled rules of statutory construction restrain us from reading words into

the language chosen by the legislature:


      [E]very word of a statute must be presumed to have been used for a
      purpose. Likewise, we believe every word excluded from a statute must
      also be presumed to have been excluded for a purpose. This rule
      complements another general statutory construction principle that courts
      should not insert words in a statute except to give effect to clear legislative
      intent.



In re Bell, 91 S.W.3d 784, 790 (Tex. 2002) (citations omitted). See Cameron v. Terrel &

Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981) (additional language is read into a

statute Aonly when it is necessary to give effect to the clear legislative intent@). The

legislature expressly has provided that some actions require a voter’s ballot to be

excluded, and we decline to add to the legislature’s expressed list.


      That it was Morales, a candidate, who provided some assistance to Maldonado

does not require a different conclusion. The legislature has prescribed the class of

individuals a voter may not select to assist the voter in marking the ballot, and the

excluded individuals does not include a candidate.          See § 64.032(c) (providing on

voter’s request, voter may be assisted by any person selected by voter other than the

voter’s employer, an agent of the voter’s employer, or an officer or agent of a labor

union to which the voter belongs); § 86.010(a) (limiting persons who may assist voter

casting ballot by mail to those provided by § 64.032(c)).


      Our review of the Election Code requires the conclusion Morales’s failure to

provide the required information and sign on the carrier envelope does not alone

                                            12
exclude Maldonado’s ballot from the count of votes cast. Maldonado was entitled to no

greater assistance than had she voted at the polling place. Tex. Elec. Code Ann. '

86.010(b) (Vernon 2010). The trial court did not abuse its discretion by not rejecting

Maldonado’s ballot for assertedly improper assistance.


       Improper Transport of Ballot


       Jones next argues the mail-in ballot of uncounted voter De Los Santos was

improperly transported to the early voting clerk. Thus, he continues, the trial court

abused its discretion in validating the ballot.


       On direct examination of De Los Santos, age sixty-seven, the following exchange

occurred:


Q.     Did you [cast your vote] by mail-in ballot, sir?


A.     I don=t remember. I think I got it in the mail, and then I sign it and someone pick it

       up, I think. I think that=s the way it happened.


       A voter voting by mail must place the marked ballot in the official ballot envelope,

seal the ballot envelope, place the ballot envelope in the official carrier envelope, seal

the carrier envelope, and sign the certificate on the carrier envelope. Tex. Elec. Code

Ann. ' 86.005(c) (Vernon 2010). A person other than the voter who deposits the carrier

envelope in the mail or with a common or contract carrier must provide the person=s

signature, printed name, and residence address on the reverse side of the envelope.

Tex. Elec. Code Ann. ' 86.0051 (Vernon 2010).              The carrier envelope may be

transported and delivered to the early voting clerk only by mail or common or contract
                                              13
carrier. Tex. Elec. Code Ann. ' 86.006(a) (Vernon 2010). A ballot returned in violation

of § 86.006 may not be counted. See Tex. Elec. Code Ann. ' 86.006(h) (Vernon 2010).


       County Clerk Marilyn Holcomb testified she was overseer of the 2006 general

election. Addressing the procedure applied to mail-in ballots, Holcomb testified that the

ballots rejected by the ballot board were each returned by mail. On this record, we see

no abuse of discretion in the trial court’s refusal to reject the ballot of De Los Santos for

its asserted improper transport.


Motion to Dismiss for Want of Prosecution


       Jones next argues the trial court abused its discretion by denying his motion to

dismiss the case for want of prosecution.


       A trial court is empowered to dismiss a case for want of prosecution either under

Texas Rule of Civil Procedure 165a or its inherent power to control its docket. Villarreal

v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). We review a trial

court=s ruling on a motion to dismiss for want of prosecution by the abuse of discretion

standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997).


       Citing Rule 6 of the Texas Rules of Judicial Administration, Jones argues public

policy favors prompt disposition of civil non-jury cases. In non-jury cases, district court

judges Ashould, so far as reasonably possible, ensure that all@ non-family law civil

Acases are brought to trial or final disposition . . . [w]ithin 12 months from appearance

date.@ Tex. R. Jud. Admin. 6(b)(2), reprinted in Tex. Gov=t Code Ann., tit. 2, subtit.

FBAppendix (Vernon Supp. 2009).          According to Rule 1 of the rules of judicial

                                             14
administration, the rules are promulgated pursuant to § 74.024 of the Government

Code. Id. at Rule 1. Section 74.024 provides Athe supreme court may consider the

adoption of rules relating to: (1) nonbinding time standards for pleading, discovery,

motions, and dispositions; (2) nonbinding dismissal of inactive cases from dockets, if the

dismissal is warranted; . . . .@ Tex. Gov’t Code Ann. ' 74.024(c)(1),(2) (Vernon Supp

2009). Thus, the application of Rule 6 is discretionary and non-binding. See In re

S.D.W., 811 S.W.2d 739, 746 (Tex.App.BHouston [1st Dist.] 1991, no writ) (juvenile

case).    Moreover, circumstances may preclude adherence to the standards under

especially complex cases or those presenting special circumstances.         Tex. R. Jud.

Admin. 6(e), reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. FBAppendix (Vernon Supp.

2009). Thus, Rule 6 does not fix a bright line demarking the outward limit of a trial

court=s discretion to control its docket.


         In the trial court, Morales argued delay sprang in part from assignment of the

case to an appointed judge. But we find no record support for the claim. Rather, the

record shows limited pretrial activity. Jones served requests for disclosure with his

original answer on December 14, 2006. Morales deposed Holcomb in February 2007

but she refused to produce rejected ballots without an order of the court. In June,

Holcomb, her counsel, and counsel for the parties reviewed documents in Holcomb=s

possession. She again refused to produce the rejected ballots. On December 11,

Morales filed a motion to compel production of the rejected ballots. Jones responded

and moved for dismissal for want of prosecution under the court=s inherent authority. By

written response, Morales argued he did not receive advance notice of the trial court=s

intention to dismiss for want of prosecution and because the contest was not of a
                                            15
primary election or a general or special election requiring a runoff, the Election Code did

not require an accelerated schedule. See Tex. Elec. Code Ann. ' 232.012 (Vernon

2010). At the hearing, the trial court expressed its cognizance of Jones=s contention

and indicated the case probably should have been brought to trial more quickly. But it

resolved the issue in favor of allowing the case to proceed. Jones reurged his motion

on the first day of trial and it was again denied.


       A trial court abuses its discretion when it acts without reference to any guiding

rules or principles, not when it exercises that discretion in a manner different than a

reviewing appellate court might.       Urbanczyk v. Urbanczyk, 278 S.W.3d 829, 836

(Tex.App.BAmarillo 2009, no pet.) (citing Downer, 701 S.W.2d at 241-42). Under the

standard by which we must review the trial court=s decision, we cannot say it abused its

discretion by denying Jones=s motion to dismiss for want of prosecution.


                                         Conclusion


       Finding the trial court did not abuse its discretion in sustaining Morales=s contest

and denying Jones=s motion to dismiss, we affirm the judgment of the trial court.

Because of our disposition, it is unnecessary to consider Morales=s cross-issue that two

voters were improperly denied precinct four ballots. See Tex. R. App. P. 47.1.




                                                        James T. Campbell
                                                             Justice




                                              16
