                                                                                    ACCEPTED
                                                                                04-15-00365-CV
                                                                    FOURTH COURT OF APPEALS
                                                                         SAN ANTONIO, TEXAS
                                                                           7/27/2015 3:13:46 PM
                                                                                 KEITH HOTTLE
                                                                                         CLERK

                  NO. 14-15-00365-CV

                                                              FILED IN
           IN THE COURT OF APPEALS      4th COURT OF APPEALS
       FOURTH COURT OF APPEALS DISTRICT SAN ANTONIO, TEXAS
              SAN ANTONIO, TEXAS        07/27/2015 3:13:46 PM
                                                        KEITH E. HOTTLE
                                                             Clerk
                          ******


                RAUL (ROY) MORALES

                                                                   Appellant

                            V.

                     RUDY SEGURA

                                                                    Appellee


       On Appeal from Cause No. 14-12-1070-CVA
In the 81st Judicial District Court, Atascosa County, Texas
            Honorable David Peeples, Presiding



                BRIEF OF APPELLANT


                          Keith A. Kendall
                          State Bar No. 11263250
                          Frank J. Garza
                          State Bar No. 07731590
                          DAVIDSON TROILO REAM & GARZA, P.C.
                          7550 West I.H. 10, Suite 800
                          San Antonio, Texas 78229
                          Telephone: (210) 349-6484
                          Facsimile: (210) 349-0041
                          Email: kkendall@dtrglaw.com

                          ATTORNEYS FOR APPELLANT

               Oral Argument Requested
                             STATEMENT OF THE CASE

      This is an election contest based upon the results of the election for City Council

in the City of Jourdanton, Texas, in November, 2014. The case was heard by the

Honorable David Peeples, Judge Presiding. The case proceeded to trial before Judge

Peeples on June 8, 2015. The court noted its oral ruling on that same date (Tr. 139-

140) and Judgment was entered by the court on June 12, 2015, for Contestant.

(CR 142-143.) Contestee gave notice of appeal. (CR 139-141.)

                   STATEMENT REGARDING ORAL ARGUMENT

      Oral argument would aid this Court in understanding the process that was

employed by the Atascosa County Elections Administrator’s office in rejecting the votes

cast by Sheldon Day.

                            STATEMENT OF JURISDICTION

      This Court has jurisdiction over this appeal pursuant to TEX. ELEC. CODE ANN.

§ 221.002(f) (West 2014).

                                ISSUES PRESENTED

      1.     Did the trial court err in finding that Contestant had proven that § 63.006
             was applicable to voter, Sheldon Day?

      2.     Did the trial court err in finding that Contestant had proven, by clear and
             convincing evidence, that voter Sheldon Day met the requirements of
             § 63.006?

      3.     Did the trial court err in determining that § 63.006 applied to the voter,
             Sheldon Day, since application of § 63.009 was required under the
             undisputed facts?

      4.     Did the trial court err in finding that the provisions of § 63.009 applied to
             the situation involving voter, Sheldon Day?

      5.     Did the trial court err in failing to find that voter, Sheldon Day, was not a
             properly registered voter, more than 30 days before the election, in a



                                           iv
precinct within the City of Jourdanton, Texas, for purposes of voting in the
City elections in November, 2014, since he had not timely registered to
vote in the November, 2014 city elections?




                              v
TO THE HONORABLE COURT OF APPEALS:

       Appellant, Raul (Roy) Morales, files his brief requesting that this Court reverse

the trial court’s Order on Final Judgment ordering that the Contestant was the winning

candidate for the Jourdanton City Council election held on November 4, 2014.

                               STATEMENT OF FACTS

       After conducting the City of Jourdanton general election on November 4, 2014,

for two-at-large city council positions, Contestee Raul Morales was declared one of the

winners of the council elections. (Supp. CR 4-8.) Contestant Rudy Segura filed a

contest to that election alleging, among other things, that irregularities prevented

several voters from having their votes counted. (CR 5-11.) At the trial of the contest,

Contestant contended that two voters, Mr. Sheldon Day and Mr. Carlos Pacheco, did

not have their votes properly counted. (Tr. 9.) The vote of Carlos Pacheco was found

by the court to have been properly excluded (Tr. 139), and Appellant does not complain

of this decision on appeal.

       As to voter Sheldon Day, Mr. Day testified that he had lived in the City of

Jourdanton since May, 2014. (Tr. 28-29.) Approximately in June, 2014, he went to a

local Department of Public Safety office and attempted to change his driver’s license

address. (Tr. 29.) Mr. Day also testified that at the time that he presented to the

Department of Public Safety office to change the address on his driver’s license, he had

not considered changing his voter registration address, although he knew that there was

a procedure to do that on the card. (Tr. 38-39.) When he handed his change of

address form to the clerk, he had not checked the box to change his voter registration

status residence. (Tr. 39.) As he handed his change of residence address to the clerk,
he had not intended at that point in time to change his address for his voter registration.

(Tr. 39.) After handing the clerk his change of address form, he was asked by the clerk

if he also wanted to change his voter registration address. Mr. Day replied that he did.

(Tr. 29.)

       When he went in to early vote on October 20, 2014, he did not present any form

of voter registration card. (Tr. 30-31.) When Mr. Day voted or attempted to vote on

October 20, 2014, he listed as being registered to vote on a county road outside the City

of Jourdanton. (Tr. 75.) He was not on the list of registered voters for any precinct

within the City of Jourdanton. (Tr. 78, 96-99, 106.) Mr. Day was given a provisional

ballot. (Tr. 79.) After Mr. Day cast his provisional ballot, the Elections Administrator

checked with the Department of Public Safety to ascertain whether or not Mr. Day had

ever changed his voter registration to reflect that he was a resident of a precinct within

the City of Jourdanton and discovered that he had not. (Tr. 79-80.) Based on the

information received from the Texas Department of Public Safety, the Elections

Administrator determined that Mr. Day was not a registered voter 30 days before the

election in the City of Jourdanton and his ballot was not counted. (Tr. 84-85.) Mr. Day

was notified that his ballot had been rejected. (Tr. 85.) The Elections Administrator did

not recall Mr. Day contacting the office to make any inquiry after he received the notice

of rejection of his ballot for his provisional ballot for the City of Jourdanton. (Tr. 85.)

       At the time Mr. Day attempted to vote on October 20, 2014, he was not a

registered voter in either Precinct 13 or Precinct 19 within the City of Jourdanton, Texas.

(Tr. 106, 115-116.)




                                               2
                            SUMMARY OF THE ARGUMENT

       At the time voter, Sheldon Day, attempted to vote in the City of Jourdanton

municipal elections on October 20, 2014, he was not a properly registered voter in any

precinct within the city limits of the City of Jourdanton. He was, therefore, ineligible to

vote that day in the municipal elections for the City of Jourdanton, since he had failed to

properly transfer his voter registration from his former precinct in Atascosa County to a

precinct within the City of Jourdanton.

       Furthermore, at the time he presented to the early voting ballot location on

October 20, 2014, he did not present any type of voter registration card. The provisions

of TEX. ELEC. CODE ANN. § 63.006 were, therefore, not applicable to his situation.

Rather, the provisions of TEX. ELEC. CODE ANN. § 63.009 control and were properly

applied by the Elections Administrator’s office.       Mr. Day’s provisional votes were,

therefore, properly.

                            ARGUMENT AND AUTHORITIES

       In an election contest, the contestant must prove that an elected official

prevented an eligible voter from voting [emphasis added].           Tiller v. Martinez, 974

S.W.2d 769 (Tex. App.─San Antonio 1998, pet. dism’d w.o.j.); TEX. ELEC. CODE ANN.

§ 221.003. An election contestant’s burden is a heavy one and the declared results of

an election will be upheld in all cases except where there is clear and convincing

evidence of an erroneous result. Willet v. Cole, 249 S.W.3d 585, 589 (Tex. App.─Waco

2008, no pet.) Clear and convincing proof requires more proof than a preponderance of

the evidence and is the degree of proof that will produce in the mind of the trier of fact a

firm belief or conviction as to the truth of the allegations sought to be proved. Id. at 589.




                                             3
       Contestant has not proved by any evidence, much less clear and convincing

evidence, that voter Sheldon Day was an eligible voter in the precinct in which he was

trying to vote in the City of Jourdanton election conducted in November, 2014.

According to Janice Ruple, the Atascosa County Elections Administrator, Mr. Day would

have been eligible to vote in either Precinct 13 had he registered in time. (Tr. 117-119.)

Sheldon Day’s testimony was that he went to change his driver’s license address in the

summer of 2014, but did not check the box indicating he wanted to register to vote. (Tr.

38-39.) Mr. Day further testified that when he went to the Texas Department of Public

Safety to change his driver’s license address, his only intent was to (1) change the

address on his driver’s license, (2) that he knew there was a space to change his voter’s

registration but did not think about that day, (3) did not pay any attention to the box to

check to change his voter’s registration address, (4) and never marked that box himself.

(Tr. 38-39.)

       Janice Ruple testified that in order to vote in a precinct, one must be registered to

vote in that precinct 30 days before the election. (Tr. 75.) See TEX. ELEC. CODE ANN.

§ 13.143(a). No contrary evidence was admitted. Ms. Ruple further testified that Mr.

Day was rejected as a voter in the City of Jourdanton election because he was not

registered in a City of Jourdanton precinct 30 days before the election. (Tr. 75-76, 178.)

Ms. Ruple confirmed that Mr. Day had not effectuated a change at the time he changed

his driver’s license address with the Texas Department of Public Safety. (Tr. 78-80.)

       Ms. Ruple testified that the election procedures published by the Elections

Division   of   the   Secretary   of   State’s   office,   admitted   into   evidence    as

Defendant/Contestee’s Exhibit 1 (CR 68-131), were followed with regards to Mr. Day’s




                                             4
attempt to vote in the City of Jourdanton election.       (Tr. 75-76.)    Ms. Ruple further

testified that the process, as reflected on page 20 of Contestee’s Exhibit 1, was

applicable to Mr. Day’s situation and was followed.        (Tr. 80-85.)    According to the

Secretary of State’s office, the registration must be effective 30 days before the election.

(Tr. 82-83.) There is no evidence that Mr. Day or anyone else checked the box to

change the voter registration address at any point in time. (Tr. 79-80.)

       The process that was followed by the Atascosa County Election Administrator

was in conformance with TEX. ELEC. CODE ANN. § 63.009, which applies to a situation

where the voter does not present a voter registration certification and is not on the list of

registered voters for the precinct in which the voter is offering to vote.       [Emphasis

added.] In accordance with this section, Mr. Day was provided with a provisional ballot.

(Tr. 79.) Mr. Day attempted to vote in a precinct (within the City of Jourdanton) in which

he was not properly registered, so his ballot was not counted. (Tr. 79.) This is the

proper procedure to follow according to the Texas Secretary of State Handbook for

Election Judges and Clerks, admitted without objection as Defendant/Contestant’s

Exhibit 1. (Tr. 140, 75.)

       The trial court instead found that TEX. ELEC. CODE ANN. § 63.006 applied to the

facts of this case. (Tr. 139.) Section 63.006, however, does not apply since Mr. Day

did not present to the polling place with any kind of voter registration card.

       The difference in the requirements of § 63.006 and § 63.009 are not to be

ignored or taken lightly. It must be presumed that the legislature had a reason for the

requirements of both sections and that both requirements needed to be met in the

different situations presented. Both § 63.006 and § 63.009 deal with a situation where




                                             5
the voter presents proper identification at a polling place, but the voter’s name is not on

the polling list as a registered voter for that precinct. The difference is whether the voter

does (§ 63.006) or does not (§ 63.009) have a voter registration card. It is clear that Mr.

Day did not have such a card. As a result, § 63.009 was properly applied.

       When Mr. Day’s registration was checked by the Elections Administrative Office

for the County of Atascosa, it was found that he had not properly registered more than

30 days before the election in a City of Jourdanton precinct. Mr. Day’s votes were,

therefore, properly rejected by the Elections Administrator.

                                      CONCLUSION

       If the procedures, as enacted by the Texas legislature, are not strictly followed,

there is the very real possibility, as articulated by the Elections Administrator, that

people who are not registered within a jurisdiction could temporarily move into that

jurisdiction less than 30 days before the election, claim that they are residents of that

jurisdiction, execute an affidavit to that effect, and then vote, without any intention of

remaining within that jurisdiction or establishing residency there. (Tr. 119-120.) The

other very real concern is that voters may not have to register within a jurisdiction at all

prior to 30 days before an election, if this decision is allowed to stand.

       It is clear that the trial court judge failed to consider whether Mr. Day was a

properly registered voter within the City of Jourdanton, having moved within the City of

Jourdanton more than 30 days before the election, but not have properly transferred his

voter registration to a precinct within the City of Jourdanton, more than 30 days before

the election as required by TEX. ELEC. CODE ANN. § 13.143. The court further found that

the provisions of § 63.006 were applied, § 63.009.




                                              6
                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court set

this case for oral argument and that the Judgment of the trial court be reversed and

rendered, disallowing the two votes cast by voters Sheldon Day and reinstating Mr. Raul

Morales, Contestee, as the true winner of the election.

                                        Respectfully submitted,

                                        DAVIDSON, TROILO REAM & GARZA, P.C.
                                        7550 West I.H. 10, Suite 800
                                        San Antonio, Texas 78229-5815
                                        Telephone: (210)349-6484
                                        Facsimile: (210)349-0041


                                         By: /s/ Keith A. Kendall
                                            FRANK J. GARZA
                                            State Bar No. 07731590
                                            fgarza@dtrglaw.com
                                            KEITH A. KENDALL
                                            State Bar No. 11263250
                                            kkendall@dtrglaw.com

                                        ATTORNEYS FOR APPELLANT

                           CERTIFICATE OF COMPLIANCE

        Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned
certifies that the above Brief of Appellant has 1,891 words, excluding the sections
identified in Texas Rule of Appellate Procedure 9.4(i)(1).



                                          /s/ Keith A. Kendall
                                         KEITH A. KENDALL




                                            7
                             CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing document
has been served upon the following on this the 27th day of July, 2015:

Mr. Jose Garza
Mr. Martin Golando
Mr. Michael Moran
115 E. Travis Street, Suite 1235
San Antonio, Texas 78205



                                         /s/ Keith A. Kendall
                                        KEITH A. KENDALL




                                          8
                                                       APPENDIX

Trial Court Judgment ..........................................................................................      TAB 1

Tr. 139 and 140 ..................................................................................................   TAB 2

TEX. ELEC. CODE ANN. §13.143 (West 2014) .......................................................                     TAB 3

TEX. ELEC. CODE ANN. §63.006 (West 2014).......................................................                      TAB 4

TEX. ELEC. CODE ANN. §63.009 (West 2014).......................................................                      TAB 5

TEX. ELEC. CODE ANN. §221.003 (West 2014) .....................................................                      TAB 6




                                                               9
