COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
NUMBER 13-14-00228-CV
MARLA CUELLAR, Appellant,
v.
OMAR MALDONADO, Appellee.
On appeal from the 206th District Court
of Hidalgo County, Texas.
NUMBER 13-14-00230-CV
REY ORTIZ, Appellant,
v.
LUIS MANUEL SINGLETERRY, Appellee.
On appeal from the 92nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
In these consolidated appeals, we address an identical issue in two separate, but
related, election contests: whether the trial court erred by granting a plea to the
jurisdiction in favor of each respective appellee-contestee. For the reasons stated
below, we reverse and remand both cases.
I. BACKGROUND
A. Appellate Cause Number 13-14-00228-CV (Cuellar v. Maldonado)
Appellant-contestant Marla Cuellar and appellee-contestee Omar Maldonado were
candidates in the 2014 Hidalgo County Court at Law No. 8 Democratic Primary Election.
Of the 41,409 votes cast in this race, Maldonado garnered 21,457 votes, or 51.82 percent;
Cuellar received 17,353 votes, or 41.91 percent; and a third candidate, Julian Castañeda,
received 2,599 votes, or 6.28 percent. Castañeda is not a party to this appeal. Cuellar
filed the present election contest almost two weeks after the final canvass of the primary
election.1
Cuellar attached various exhibits to her petition, including: (1) a handwritten
incident report filed with the Hidalgo County Election Department by voter Benito Garza
1A “final canvass” means the canvass from which the official result of an election is determined.
See TEX. ELEC. CODE ANN. § 1.005(5) (West, Westlaw through 2013 3d C.S.).
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(“the Garza incident report”), which outlines a voting irregularity that he experienced while
using Hidalgo County’s electronic voting machines;2 (2) an affidavit from Richard Alvarez,
of the Hidalgo County Judge’s office, which corroborates Garza’s incident report (“the
Alvarez affidavit”); and (3) letters from Cuellar and other candidates addressed to Hidalgo
County Judge Ramon Garcia requesting a “forensic expert” to “inspect each voting
machine to ensure that they have not malfunctioned or been subjected to fraud or
tampering.”
After answering the instant suit, Maldonado filed a plea to the jurisdiction and
asserted the trial court lacked subject matter jurisdiction over the contest because “no
facts” had been asserted by Cuellar “concerning the casting or counting of improper or
illegal ballots for County Court at Law No. 8.” Specifically, Maldonado argued that the
“one affidavit” and “one incident report” relied on by Cuellar involves the district attorney’s
race and not the race at issue. Prior to the hearing on the plea to the jurisdiction,
Maldonado also filed a motion for directed verdict which essentially asserts that there is
no evidence to support Cuellar’s contentions in this election contest.
On April 11, 2014, the trial court held a hearing and granted Maldonado’s plea.
As a result, the trial court did not rule on the pending motion for directed verdict. An
accelerated appeal followed, see TEX. ELEC. CODE ANN. § 232.014 (West, Westlaw
through 2013 3d C.S.), and this Court ordered an expedited briefing schedule. See
2 According to Garza, he attempted to vote numerous times for the incumbent district attorney,
Rene Guerra, but the machine switched his vote to Guerra’s opponent. Garza’s report further states that
he alerted election workers who cancelled his ballot and allowed him to vote on another voting machine
without issue.
3
Cuellar v. Maldonado, No. 13-14-00228-CV, slip op. at 2 (Tex. App.—Corpus Christi April
24, 2014, no pet.) (per curiam).
B. Appellate Cause Number 13-14-00230-CV (Ortiz v. Singleterry)3
Appellant-contestant Rey Ortiz and appellee-contestee Luis Manuel Singleterry
were candidates in the 2014 Hidalgo County 92nd District Court Democratic Primary
Election. Of the 41,738 votes cast in this race, Singleterry received 24,127 votes, or
57.79 percent; Ortiz received 12,466 votes, or 29.86 percent; and a third candidate,
Miguel Wise, received 5,145 votes, or 12.35 percent. Wise is not a party to this appeal.
Ortiz filed the present election contest two weeks after the final canvass of votes. Ortiz
attached the same exhibits that Cuellar attached to her petition, including: (1) the Garza
incident report; (2) the Alvarez affidavit; and (3) correspondence from Ortiz and other
candidates addressed to Judge Garcia regarding the “numerous inconsistencies and
discrepancies” in various races on the Democratic Primary ballot.
In his answer to the contest, Singleterry included a plea to the jurisdiction and
special exceptions. Singleterry’s answer also asserted that Ortiz could not meet his
burden of proof to change the outcome of the election. Specifically, the plea asserts that
Ortiz’s “pleadings and evidence” affirmatively negated the trial court’s jurisdiction.
Singleterry’s plea focuses on the Garza incident report. Singleterry argued that the
Garza incident report did not mention any problems with regard to the 92nd District Court
Democratic Primary. Furthermore, Singleterry argued that Ortiz presented “no
3On May 12, 2014, Singleterry filed a motion for leave to file his brief late in this appeal. We
hereby grant Singleterry’s motion for leave and will consider his brief in our review of this case.
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actionable controversy for the trial court’s review,” and even assuming that Garza’s vote
was miscast in the 92nd District Court race, it is insufficient to change the outcome of the
election.
On April 11, 2014, the trial court held a hearing and granted Singleterry’s plea.
An accelerated appeal followed, see id. § 232.014, and this Court ordered an expedited
briefing schedule. See Ortiz v. Singleterry, No. 13-14-00230-CV, slip op. at 2 (Tex.
App.—Corpus Christi April 24, 2014, no pet.) (per curiam).
II. STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea generally used to defeat an action
“without regard to whether the claims asserted have merit.” Mission Consol. Ind. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (quoting Bland Ind. Sch. Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000)). Essentially, the plea challenges the court’s power to
adjudicate a case. Heckman v. Williamson County, 369 S.W.3d 137, 149 (Tex. 2012).
Whether a court has subject-matter jurisdiction is a question of law that we review de
novo. See Tex. Nat. Res. Conserv. Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.
2002).
Typically, the plea challenges whether the plaintiff has alleged facts that
affirmatively demonstrate the court’s jurisdiction to hear the case. Garcia, 372 S.W.3d
at 635 (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).
In this situation, we determine if the pleader has alleged facts that affirmatively
demonstrate the court's jurisdiction to hear the cause. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the pleadings liberally in favor
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of the plaintiffs and look to the pleaders’ intent. Id. If the pleadings do not contain
sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not
affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency, and the plaintiffs should be afforded the opportunity to amend. Id. If the
pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction
may be granted without allowing the plaintiffs an opportunity to amend. Id.
A plea to the jurisdiction may also challenge the existence of jurisdictional facts.
See Garcia, 372 S.W.3d at 635. In this situation, we consider relevant evidence
submitted by the parties when necessary to resolve the jurisdictional issues raised, as the
trial court is required to do. Miranda, 133 S.W.3d at 227 (citing Bland, 34 S.W.3d at
555). This standard mirrors that of a traditional summary judgment motion. See
Garcia, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 227. Initially, the defendant carries
the burden to meet the summary judgment proof standard for its assertion that the trial
court lacks jurisdiction. Garcia, 372 S.W.3d at 635. If it does, the plaintiff is then
required to show that a disputed material fact exists regarding the jurisdictional issue.
Id. If a fact issue exists, the trial court should deny the plea. Id. But if the relevant
evidence is undisputed or the plaintiff fails to raise a fact question on the jurisdictional
issue, the trial court rules on the plea as a matter of law. Id.
In sum, the burden is on the plaintiff to affirmatively demonstrate the trial court’s
jurisdiction. Heckman, 369 S.W.3d at 150. When assessing a plea, our analysis
begins with the live pleadings. Id. We may also consider evidence submitted to negate
the existence of jurisdiction, and we must consider evidence when necessary to resolve
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the jurisdictional issue. Id. When considering evidence, the court should “confine itself
to the evidence relevant to the jurisdictional issue.” Blue, 34 S.W.3d at 555.
III. DISCUSSION
Each cause in this consolidated opinion calls upon this Court to answer the same
limited question: has the appellant-contestant affirmatively demonstrated the trial
court’s jurisdiction?4
The district court has exclusive original jurisdiction of an election contest, with a
few exceptions. See TEX. ELEC. CODE ANN. § 221.002 (West, Westlaw through 2013 3d
C.S.). When hearing an election contest, the district court shall attempt to ascertain
whether the outcome of the contested election, as shown by the final canvass, is not the
true outcome because: (1) illegal votes were counted; or (2) an election officer or other
person officially involved in the administration of the election (a) prevented eligible voters
from voting, (b) failed to count legal votes, or (c) engaged in other fraud or illegal conduct
or made a mistake. Id. § 221.003 (West, Westlaw through 2013 3d C.S.). An “illegal
vote” is defined as a “vote that is not legally countable.” Id. § 221.003(b).
Thus, the trial court in this case has the power to hear this election contest if the
contestant alleged in pleadings that (1) illegal votes were counted; or (2) an election
officer or other person officially involved in the administration of the election: (a)
prevented eligible voters from voting; (b) failed to count legal votes; or (c) engaged in
other fraud or illegal conduct or made a mistake. See id. §§ 221.002; 221.003.
4Our inquiry today is limited solely to the question of the trial court’s jurisdiction to hear the contests.
Thus, we will not address the merits of either contest.
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With this framework in mind, we now examine each cause.
A. Appellate Cause Number 13-14-00228-CV (Cuellar v. Maldonado)
In appellate cause number 13-14-00228-CV, Maldonado’s plea specifically asserts
that Cuellar alleged “no facts” “concerning the casting or counting of improper or illegal
ballots . . . which cast doubt on the validity of the primary election results of County Court
[at Law] No. 8.”
Cuellar asserted in her original petition that she
will prove by clear and convincing evidence that a sufficient number of illegal
votes were counted to affect the outcome of the election; that either through
malfunction or illegal manipulation, who voted for one candidate had their
votes re-cast for other candidates and that persons who voted for Marla
Cuellar had their votes counted for one of the other candidates . . . ; election
machines either malfunctioned or were illegally tampered with to affect the
outcome of the election . . . ; election officials or other persons officially
involved in the administration of the election witnessed that election
machines appeared to either malfunction or were tampered with so that the
outcome of the election was affected . . . ; many complaints were brought
to the attention of the Hidalgo County Elections Administrator to raise
doubts concerning the accuracy of the election results and of the function
of the election machines . . . ; the election process failed to count legal votes,
and/or engaged in other fraud or illegal conduct or made mistakes that
precluded an accurate count of the vote [sic] cast.
A liberal view of this pleading reveals that Cuellar alleges that “a sufficient number”
of illegal votes were counted so as to affect the outcome of the Hidalgo County Court at
Law No. 8 Democratic Primary race due to the “malfunction” or “illegal manipulation” of
the electronic voting machines utilized by the Hidalgo County Elections Department.
Furthermore, Cuellar alleges that complaints about the malfunctioning voting machines
were made to the Hidalgo County Elections Administrator and that the elections officials
“failed to count legal votes and/or engaged in other fraud or illegal conduct or made
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mistakes that precluded an accurate count of the vote cast.” These allegations are
within the statutory scope of inquiry given to district courts that hear election contests.
See TEX. ELEC. CODE ANN. §§ 221.002; 221.003.
Maldonado argues, however, that because Cuellar attached only one affidavit and
one incident report related to election irregularities, and because that evidence did not
relate to her particular race, but instead to the race for Hidalgo County District Attorney,
Cuellar failed to assert facts to properly invoke the trial court’s jurisdiction. We disagree.
The evidence attached to Cuellar’s petition neither negates the existence of the
trial court’s jurisdiction nor is it necessary to resolve the jurisdictional issue before us.
See Blue, 34 S.W.3d at 555. Instead, we interpret Cuellar’s offered evidence as
general supplemental and contextual background supporting Cuellar’s pleadings related
to her specific allegations of illegal vote casting, “illegal manipulation” or “malfunctioning”
of the electronic voting machines, and failure to count legal votes and/or engagement in
other fraud or illegal conduct by the Hidalgo County Elections Administrator to preclude
an accurate count of the votes cast. See id.
Therefore, after construing Cuellar’s pleadings liberally, taking all factual
assertions as true, and looking at Cuellar’s intent, see Miranda, 133 S.W.3d at 226, we
conclude that Cuellar affirmatively demonstrated the trial court’s jurisdiction to hear this
election contest. See Heckman, 369 S.W.3d at 150.
We sustain Cuellar’s sole issue on appeal.
B. Appellate Cause Number 13-14-00230-CV (Ortiz v. Singleterry)
In appellate cause number 13-14-00230-CV, Singleterry asserts in his plea that
9
Ortiz’s pleadings and evidence affirmatively negated the trial court’s jurisdiction. We
disagree.
Ortiz’s petition states that he
will prove by clear and convincing evidence that a sufficient number of illegal
votes were counted to affect the outcome of the election; that either through
malfunction or illegal manipulation, voters who voted for one candidate had
their votes re-cast for other candidates and that persons who voted for . . .
Ortiz had their votes counted for one of the other candidates . . . ; election
machines either malfunctioned or were illegally tampered with to affect the
outcome of the election . . . ; election officials or other persons officially
involved in the administration of the election witnessed that election
machines appeared to either malfunction or were tampered with so that the
outcome of the election was affected . . . ; many complaints were brought
to the attention of the Hidalgo County Elections Administrator to raise
doubts concerning the accuracy of the election results and of the functioning
of the election machines . . . ; the election process failed to count legal votes,
and/or engaged in other fraud or illegal conduct or made mistakes that
precluded an accurate count of the vote [sic] cast.
After construing this pleading liberally, we conclude that Ortiz alleges that “a
sufficient number” illegal votes were counted so as to affect the outcome of the 92nd
District Court Democratic Primary. Ortiz further alleges that votes intended for Ortiz
were re-cast for other candidates as a result of “malfunction or illegal manipulation.”
Furthermore, Ortiz alleges that complaints about the malfunctioning voting machines
were made to the Hidalgo County Elections Administrator and that the elections officials
“failed to count legal votes and/or engaged in other fraud or illegal conduct or made
mistakes that precluded an accurate count of the vote cast.” Such allegations are within
the statutory scope of inquiry given to district courts that hear election contests. See
TEX. ELEC. CODE ANN. §§ 221.002; 221.003.
Additionally, as in appellate cause number 13-14-00228-CV, the evidence
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attached to Ortiz’s petition neither negates the existence of the trial court’s jurisdiction nor
is it necessary to resolve the jurisdictional issue before us. See Blue, 34 S.W.3d at 555.
Instead, we construe this evidence as a supplement to Ortiz’s petition, designed to put
Ortiz’s allegations in context and explain the intent of his election contest, even though
the Garza incident report and Alvarez affidavit relate to a race other than the 92nd District
Court Democratic Primary.
Therefore, after construing Ortiz’s pleadings liberally, taking all factual assertions
as true, and looking at Ortiz’s intent, see Miranda, 133 S.W.3d at 226, we conclude that
Ortiz affirmatively demonstrated the trial court’s jurisdiction to hear this election contest.
See Heckman, 369 S.W.3d at 150.
IV. CONCLUSION
We reverse the trial court’s orders granting Maldonado’s and Singleterry’s pleas to
the jurisdiction in appellate cause numbers 13-14-00228-CV and 13-14-00230-CV,
respectively. We remand both cases for further proceedings consistent with this opinion.
__________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the
16th day of May, 2014.
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