Concurring and dissenting opinion of
CATHERINE STONE, Justice,joined by ALMAL. LÓPEZ, C.J.
I concur in the majority’s conclusion that the trial court erred in granting the plea to the jurisdiction but did not abuse its discretion in denying the motion for continuance. I disagree, however, with the majority’s conclusion that the trial court did not abuse its discretion in striking Rodriguez’s amended petition.
In footnote 14 of his motion for rehearing, Cuellar acknowledges that Rodriguez’s amended petition was filed more than seven days before the date of trial. See Tex.R. Civ. P. 63 (leave required only if amended pleading filed within seven days of trial or thereafter). The right to amend more than seven days before the date of trial is only subject to the opposing party’s right to show surprise. Porter v. Nemir, 900 S.W.2d 376, 384 (TexApp.-Austin 1995, no writ). When an amended pleading is filed more than seven days before trial, courts look at the following factors to determine whether the amended petition operates as a surprise: (1) how long the suit had been on file before the amended petition was filed; (2) how soon before trial the amendment was offered; (3) whether the amended petition presented a new cause of action; (4) whether the newly asserted cause of action was based on recently discovered matters; and (5) whether the opposing party alleged surprise. See, e.g., Porter, 900 S.W.2d at 384; Stevenson v. Koutzarov, 795 S.W.2d 313, 321 (Tex.App.-Houston [1st Dist.] 1990, writ denied). Since the burden in these circumstances is on the opposing party to show surprise, I believe the fifth factor should require more than a mere allegation of surprise and should, instead, require proof of surprise.
Applying these factors to the present case, I believe it was an abuse of discretion for the trial court to conclude that the amended petition operated as a surprise. The factors present in this case are:
(1) Unlike other cases in which the lawsuit had been on file one to two years before the amended petition was filed, see, e.g., Porter, 900 S.W.2d at 384; Stevenson, 795 S.W.2d at 321, the lawsuit in this case had been on file only fourteen days before the amended petition was filed. Six days after the original petition was filed, Cuellar filed his special exceptions, and the amended petition was filed eight days after the special exceptions were filed.
(2) Although the amended petition was filed thirteen days before trial, the trial occurred only twenty-seven days after the original petition was filed.
(3) For the reasons stated below, I disagree with the majority’s conclusion that the amended petition contained a “new” cause of action or basis for the contest.
(4) Given the short period of time between the first official determination that Rodriguez was the candidate on March 9, 2004, and the trial date on May 11, 2004, the clarification provided in the amended petition was necessarily based on recently discovered matters.
(5) For the reasons stated below, based on the record before us, Cuellar has failed to demonstrate surprise.
*262Because Cuellar failed to show that Rodriguez’s amended petition operated as a surprise, I would hold that the trial court abused its discretion in striking the amended petition.
The majority concludes that the trial court did not abuse its discretion in striking Rodriguez’s amended petition because it contained a “new” cause of action, which the majority refers to as a new basis for the contest. This conclusion is based on the majority’s contention that the general allegation regarding “irregularities in the casting [] of ballots” is meaningless for purposes of pleading a cause of action. This contention is contrary to the well-established principle in Texas law that pleadings are to be liberally construed. Cuellar recognized that the allegation had meaning when he filed his special exceptions, and Rodriguez responded to the special exceptions by providing further clarification, just as in any other case governed by the Texas Rules of Civil Procedure. The requested amendment did not contain a “new” cause of action or basis for the contest. The amended petition simply attempted to further define or elaborate on the general allegation by providing more specific detail regarding the types of irregularities. See, e.g., Gen. Prop. Inv., Inc. v. Toeppich, No. 04-97-00060-CV, 1999 WL 93360, at * 5-6 (Tex.App.-San Antonio Feb. 17, 1999, pet. denied) (holding trial court had no choice but to grant amendment that elaborated on causes of action already asserted) (not designated for publication); Zavala v. Trujillo, 883 S.W.2d 242, 245 (Tex.App.-El Paso 1994, writ denied) (noting allegation was not new cause of action but further defined general allegation); Southwestern Bell Tel: Co. v. Griffith, 575 S.W.2d 92, 98 (Tex.Civ.App.-Corpus Christi 1978, writ ref d n.r.e.) (finding allegations did not set up a new cause of action but merely elaborated on prior allegations).
The majority concedes that Cuellar failed to show surprise, and our record supports this concession. In Contestant’s Response to Contestee’s First Amended Special Exceptions and Pleas to the Jurisdiction, Rodriguez stated that he had supplied Cuellar with the names of approximately 262 illegal voters. In addition, our record contains an advertisement published in a Laredo newspaper on April 24, 2004, in which Cuellar acknowledged that Rodriguez’s investigators were contacting voters concerning their votes.2 Cuellar’s attorney also sent a letter to the Webb County District Attorney on April 26, 2004, in which he stated that Rodriguez had “been contacting individual voters in an apparent attempt to try to disqualify voters and ballots in Webb County.”3 Furthermore, Cuellar’s attorney acknowledged at the hearing on April 29, 2004, that he had been provided with a letter listing the names of the voters Rodriguez was challenging. Cuellar’s attorney also acknowledged at the hearing that he was aware of Rodriguez’s efforts to obtain further proof to expand his general allegation, asserting that Rodriguez was “literally trolling in an effort to find specific individuals who may or may not have registered at the correct address. And by ‘trolling’ I mean what occurred was a group of people, and I’ve heard 50 representatives, of Mr. Rodriguez were sent to Webb County, went door by door literally trying to find people who they thought may have voted and may be illegal.”
*263In view of Rodriguez’s pleading and the surrounding circumstances, I would conclude that Rodriguez’s original petition contained a general allegation relating to invalid votes being cast and that Cuellar had fair notice of Rodriguez’s allegation or claim regarding irregularities in the casting of votes. Accordingly, based on the record before us, I would hold that the trial court abused its discretion in striking Rodriguez’s amended petition.
Under the majority’s reasoning, if Rodriguez had elected not to include the details regarding the vote count irregularities in the original petition, the allegation of “irregularities in the casting, counting and recounting of votes” would have been insufficient to state any claim. Even if this were the case, in every other situation in which pleadings are found to be deficient, whether in response to special exceptions or a plea to the jurisdiction, the plaintiff must be given a reasonable opportunity to amend his pleadings. See Harris County v. Sykes, 136 S.W.3d 635, 639-40 (Tex.2004); Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). In upholding the trial court’s striking of Rodriguez’s amended petition, the majority effectively circumvents the “protective features of special exception procedure” which the Texas Supreme Court has cautioned against. Texas Dept. of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974); see also Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998); Castano v. San Felipe Agricultural, Mfg., & Irrigation Co., — S.W.3d. -, at- -, No. 04-01-00382-CV, 2004 WL 839693, at *7-8 (Tex.App.-San Antonio Apr.21, 2004, no pet. h.). The Texas Legislature expressly provided, “Except as otherwise provided by this subtitle, the rules governing civil suits in the district court apply to an election contest in the district court.” Tex. Elec.Code Ann. § 231.002 (Vernon 2003). In view of this, election contests should be governed by all of the Rules of Civil Procedure, including the “protective features of special exception procedure.” Herring, 513 S.W.2d at 10.
Because I believe the original petition contained a general allegation relating to irregularities in the casting of votes and the amended petition merely provided additional detail in response to Cuellar’s special exceptions, I disagree with the majority’s conclusion that Rodriguez’s amended petition contained a “new” cause of action or basis for the contest. Accordingly, I respectfully dissent.
. The newspaper advertisement was published four days before Rodriguez filed his amended petition.
. The letter was sent two days before Rodriguez filed his amended petition.