Hardy v. Hannah

849 S.W.2d 355, 1992 WL 385182
CourtCourt of Appeals of Texas
DecidedApril 14, 1993
Docket3-92-351-CV
StatusPublished
Cited by22 cases

This text of 849 S.W.2d 355 (Hardy v. Hannah) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hardy v. Hannah, 849 S.W.2d 355, 1992 WL 385182 (Tex. Ct. App. 1993).

Opinion

ABOUSSIE, Justice.

Charles E. Hardy and Louis Podesta, both registered voters of the State of Texas, filed suit to invalidate Constitutional Amendment Four, approved by the voters in the November 1991 general election. Tex. Const, art. Ill, § 49-h(d). The Amendment authorized the issuance of general obligation bonds to fund construction of criminal punishment facilities. Hardy and Podesta contend that the ballot proposition was deceptively worded so that voters did not realize that they were authorizing funds to be used for substance abuse treatment facilities as well as prison facilities. They appeal the trial court’s rendition of summary judgment in favor of the Honorable John Hannah, Jr., Secretary of State of the State of Texas. After considering the appellants’ three points of error, we will affirm the judgment of the trial court.

The Texas Election Code requires a contestant to file suit and serve citation on the Secretary of State before completion of the official vote canvass. Tex.Elec.Code Ann. § 233.014(b) (West 1986). The record reflects that Podesta so filed but that Hardy *357 did not join in the action until after the vote had been canvassed. Hannah then moved for summary judgment on the basis that neither Hardy nor Podesta had standing to challenge the validity of the amendment. Appellants’ third point of error contends only that the trial court erred in holding that Podesta lacked standing to sue. Hardy does not challenge this basis for the court’s ruling as to him, and thus the summary judgment against Hardy is affirmed.

With respect to Podesta’s standing, Hannah argues that Podesta cannot bring suit on behalf of citizens who allegedly were deceived by the wording on the ballot because he was not personally deceived himself. The record shows that Podesta published editorial pieces in Texas newspapers in which he opposed the adoption of the amendment because it provided for drug treatment programs. However, in light of our holding herein that the test for constitutional validity is the ability of the average voter to distinguish among ballot proposals, Podesta’s personal understanding of the character of the amendment is not dispositive.

We note the general rule that where the sole object of a suit is for the benefit of the public at large and no citizen is to be affected differently from all other citizens, an individual cannot institute a cause of action because he has no justicia-ble interest. Marshall v. City of Lubbock, 520 S.W.2d 553, 554-55 (Tex.Civ.App.—Amarillo 1975, writ ref’d n.r.e.); Reynolds v. Cobb, 196 S.W.2d 60, 62 (Tex.Civ.App.—Dallas 1946, no writ). A particular statute, however, may confer standing as an exception to this rule. See Marshall, 520 S.W.2d at 555; Reynolds, 196 S.W.2d at 62. These principles apply specifically to election contests. Yett v. Cook, 281 S.W. 837, 841 (Tex.1926). Podesta argues that the special provision relating to contests of constitutional amendment elections confers standing on any citizen. According to that provision, “Any question relating to the validity or outcome of a constitutional amendment election may be raised in an election contest.” Tex.Elec.Code Ann. § 233.014(g) (West 1986). We do not think that the fact that any question may be raised necessarily implies that any person may raise it. Because Podesta has failed to show that he has a particular justiciable interest in the election contest, we overrule point of error three.

Hannah also moved for summary judgment on the grounds that the language of the ballot proposition was adequate and that the contents of the amendment had been sufficiently publicized. Podesta’s first point challenges Hannah’s summary judgment proof on these issues as inadmissible because it was unauthenticated and predicated on hearsay. Podesta’s second point contends that his own summary judgment proof created a fact issue which precluded summary judgment. Even assuming that Podesta had the requisite standing, we cannot agree with his remaining points of error, either.

The amendment in question reads as follows:

Art. Ill, § 49-h of the Texas Constitution is amended by adding subsection (d) to read as follows:
(d)(1) The legislature may authorize the issuance of up to $1.1 billion in general obligation bonds, in addition to the amount authorized by subsections (a)-(c) of this section, and may use the proceeds of the bonds for acquiring, constructing, or equipping new prisons and substance abuse felony punishment facilities to confine criminals, mental health and mental retardation institutions, and youth corrections institutions, and for the acquisition of, major repair to, or renovation of other facilities for use as state prisons or substance abuse felony punishment facilities. Proceeds of general obligation bonds issued under this subdivision may not be appropriated by any session of the legislature other than the 2nd Called Session of the 72nd Legislature or any subsequent session of the legislature.
(2) The provisions of subsection (a) of this section relating to the review and approval of bonds and the provisions of subsection (b) of this section relating to the status of the bonds as a general obligation of the state and to the manner *358 in which the principal and interest on the bonds are paid apply to bonds authorized under this subsection.

The amendment was described on the ballot as follows:

The constitutional amendment authorizing the issuance of up to $1.1 billion in general obligation bonds for acquiring, constructing, or equipping new prisons or other punishment facilities to confine criminals, mental health and mental retardation institutions, and youth corrections institutions, for major repair or renovation of existing facilities of those institutions, and for the acquisition of, major repair to, or renovation of other facilities for use as state prisons or other punishment facilities.

Voters are presumed to be familiar with the content of the actual proposed amendment summarized on a ballot. Winger v. Pianka, 831 S.W.2d 853, 856 (Tex.App.—Austin 1992, writ denied). A ballot adequately describes a proposed amendment if it gives fair notice to the voter of average intelligence by directing him to the amendment so that he can discern its identity and distinguish it from other propositions on the ballot. Hill v. Evans, 414 S.W.2d 684, 692-93 (Tex.Civ.App.—Austin 1967, writ ref d n.r.e.). The ballot language must show the character and purpose of the amendment, but it need not show all the relevant details. Winger, 831 S.W.2d at 856; Hill, 414 S.W.2d at 692; Whiteside v. Brown, 214 S.W.2d 844

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Bluebook (online)
849 S.W.2d 355, 1992 WL 385182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardy-v-hannah-texapp-1993.