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
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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