concurring and dissenting.
I concur with the majority’s holding on the residency issue. Mr. Speights simply did not meet his burden of showing a sufficient number of non-residents voted. However, I respectfully dissent to the registration issue.
This issue involves three pertinent sections of the Election Code. Tex. Elec.Code Ann. § 13.002(c)(7) (Vernon Supp.2002) requires a voter registration application to include “the applicant’s residence address or, if the residence has no address, the address at which the applicant receives mail and a concise description of the location of the applicant’s residence.” Tex. Elec.Code Ann. § 1.005(17) (Vernon Supp. 2002) says “ ‘Residence address’ means the street address and any apartment number, or the address at which mail is received if the residence has no address, and the city, state, and zip code that correspond to a person’s residence.” Tex. Elec.Code Ann. § 1.015(a) (Vernon Supp.2002) states: “In this code, ‘residence’ means domicile, that is, one’s home and fixed place of habitation to which one intends to return after any temporary absence.”
While the determination that a person is in fact a resident is a separate inquiry, the statutory definition of residence must be included in the determination of whether a voter properly registered by including a residence address or a description of the applicant’s residence. The definition of residence is clear and has two components: a home or fixed place of habitation and the requisite intent.
The majority’s description of the scheme established for the members of the Escapees’ RV club to establish a mailing address on Rainbow Drive is correct, insofar as it does. The chief operating officer of the club testified that the mail forwarding service, one building, started with a rural route number and box and then selected a street address of 101 Rainbow Drive. She went on to explain that all the addresses on Rainbow Drive, whether they be 101, 201, etc., are in the same location, the mail forwarding service. She further explained that each member is assigned a personal mail box (PMB). She acknowledged that an address such as 101 Rainbow Drive or 124 Rainbow Drive, with a PMB number after it, would not have a lot or house associated with that address.
Speights introduced, as exhibit two, a collection of eighty-nine voter registration applications. These applications, under residence address, reflect thirty-five addresses as 201 Rainbow Drive, eighteen addresses as 200 Rainbow Drive, eighteen addresses as 202 Rainbow Drive, fifteen addresses as 101 Rainbow Drive, two addresses as 217 Rainbow Drive and one address as 124 Rainbow Drive. Speights received certified copies of the voter registration applications for persons who voted 1 in precincts 19 and 20 in the election.2 He produced evidence that 5,187 voter registration applications had a residence address of either Route 5, Box 3xx or # Rainbow #. There was also evidence *823that of those, less than 100 would have the Route designation. The Escapees’ CEO testified Rainbow Drive was approximately a quarter of a mile long. The CEO also testified from a map or plat of the RV park that there were certain deed lots and those numbered approximately 220. According to the plat and the testimony, there are 29 deeded lots that could have a Rainbow Drive Address. The election results show that Mr. Willis received 4,142 votes from precincts 19 and 20 while Mr. Speights received 1,050, or a total of 5,192 votes were cast from those two boxes.
The simple question is whether the address of a mail forwarding service can be a “residence address.”3 I would hold, as a matter of law, it cannot.4 However, even if factual determinations are necessary, there is overwhelming evidence that: (1) there are, at most, only 29 deed lots on Rainbow Drive (2) Rainbow Drive is about a quarter of a mile long and (3) some 5,000 voters listed their residence address as Rainbow Drive. Disregarding the uncon-troverted evidence that these 5,000 persons were only utilizing the mail forwarding building as their residence address and assuming 29 Rainbow Drive addresses, this translates to 172 persons per address. There is no evidence that each of these lots contained an apartment building capable of being a home or fixed place of habitation for 172 persons.5 Either way, in my view, the 5,000 or so voters in precincts 19 and 20 were not properly registered, therefore they were ineligible voters. If that is the case, then the true outcome of the election can not be ascertained and the election should be declared void. Thompson v. Willis, 881 S.W.2d 221, 225 (Tex.App.-Beaumont 1994, no writ).
The legislature may very well change the definition of “residence” to accommodate persons such as members of the Escapees,6 but it is not for this court or the trial court to do. Therefore, I respectfully dissent.
. The number of applications was slightly less than the total voters.
. Voters using a PMB were placed in either 19 or 20 based upon the PMB.
. See Alvarez v. Espinoza, 844 S.W.2d 238, 248 (Tex.App.-San Antonio 1992, writ dism'd w.o.j.) (where the court held that a person with an alleged permanent address that was essentially a place to receive mail was an illegal voter).
. See Fischer v. Stout, 741 P.2d 217, 221 (Alaska 1987).
.This is noted very "tongue in cheek”.
. For example, “residence” means either domicile, that is, one's home and fixed place of habitation to which one intends to return after any temporary absence or legal domicile, that is, that place which one intends to be their legal residence, without any necessity of a fixed place of habitation or without any intent to maintain an actual residence.