Kiehne v. Jones

247 S.W.3d 259, 2007 Tex. App. LEXIS 4869, 2007 WL 1793127
CourtCourt of Appeals of Texas
DecidedJune 21, 2007
Docket08-07-00075-CV
StatusPublished
Cited by11 cases

This text of 247 S.W.3d 259 (Kiehne v. Jones) 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
Kiehne v. Jones, 247 S.W.3d 259, 2007 Tex. App. LEXIS 4869, 2007 WL 1793127 (Tex. Ct. App. 2007).

Opinions

OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Zane Kiehne, Appellant here and Con-testee below, filed this accelerated appeal challenging the trial court’s determination of residency for voting purposes of six residents of Loving County, Texas.1 Appellant asks this Court to overturn the trial court’s finding that three of the challenged voters are Loving County residents and are eligible to legally vote in that county, as well as the finding that three other challenged voters are not Loving County residents and, as such, are not eligible to vote in Loving County.

This appeal comes to us from a special election for County Commissioner Precinct Three. Loving County is the smallest county in our jurisdiction, a rural West Texas county bordering a portion of eastern New Mexico.2 Precinct Three covers the northwestern portion of Loving County that runs along the border with New Mexico. The history and the record reflect that Loving County is no stranger to curious and contested elections. Indeed, the author notes that in the 1994 General Election, the Loving County voters were evenly split, 36 to 36, as they are often wont to be, between the author and his election opponent, the Honorable Julia Vaughn.

In September of 2006, Skeet Jones, County Commissioner Precinct Three, filed to run for County Judge. This, in turn, resulted in a mid-term vacancy for his office. Zane Kiehne (Zane) and Thom[262]*262as E. Jones (Jones) both filed as write-in candidates for the vacant position.

Zane and his cousin, Oliver Kiehne, own a large ranch which spreads over parts of Texas and New Mexico. The main headquarters for the Texas part of the ranch is referred to as the Kyle Ranch. Around the time Zane decided to run for commissioner, he deeded out several 2.5 acre portions of his property to various Mends and family members. Zane also embarked on a campaign of registering Loving County landholders as voters.

On November 7, 2006, an election was held for the vacant county commissioner position. Zane prevailed over Jones by 1 vote, garnering 26 to Jones’ 25 votes. Following the election, Jones filed a petition in the district court contesting the results.3 His petition alleged that over a dozen of the votes cast were illegal because those voters were not residents of Loving County on the date of the election. According to Jones, these twelve or so votes affected the outcome of the election because those persons voted for Zane. Zane contended that Jones’s claims were moot as Zane had already been sworn in as commissioner. He further asserted counterclaims which also challenged the legality of certain votes east.

A two-day bench trial was held on February 22 and March 14, 2007. At trial, the residency status of most of the registered voters in Loving County was vigorously debated by the parties. On March 14, 2007, the trial court rendered a judgment finding by clear and convincing evidence that irregularities had occurred in the election that materially affected the outcome. Consequently, the trial court voided the prior election and ordered that a new election be conducted.4 The trial court’s order listed by name the thirty challenged voters it found are not residents and not eligible to vote in Loving County, and sixteen others that are residents of Loving County and, therefore, are eligible. Zane filed this appeal and this Court ordered, pursuant to Section 232.016 of the Texas Election Code, that the trial court’s judgment be suspended pending the outcome of the appeal. Tex.Elec.Code Ann. § 232.016.

Zane urges this Court to review the trial court’s determination of the eligibility of six voters, three who presumably voted for Zane, and three the parties believe voted for Jones.5 Jones, conversely, argues that even if Zane can show the trial court erred in its decisions on the six voters, the error was harmless. Jones further reasons that this appeal is itself a wasted effort, because the election was already determined to be void, and because there is no way of knowing whether the six challenged voters will vote in the next election.

Mr. Jones has suggested that the case before us is moot and there is agreement by members of the panel that that may be [263]*263in so far as future elections; however, a majority of the panel believe that it is historically clear that this case presents an exception to the mootness doctrine as being of the type of case frequently faced in Loving County, but likely to be without an adequate remedy in the time that it takes for the justice system to address the situation.

Standard of Review

We review a trial court’s determination in an election contest for an abuse of discretion.6 Guerra v. Garza, 865 S.W.2d 573, 576 (Tex.App.-Corpus Christi 1993, writ dism’d w.o.j.); Green, 836 5.W.2d at 209. A trial court commits an abuse of discretion if its decision is so arbitrary and unreasonable that it rises to the level of a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). In reviewing a court’s factual determinations for an abuse of discretion, we may not substitute our judgment for that of the trial judge. Id. We give a great deal of deference to the trial court, as the trier of fact, in its determination of both the credibility of the witnesses and the weight of their testimony. Slusher v. Streater, 896 S.W.2d 239, 245 (Tex.App.Houston [1st Dist.] 1995, no writ); Green, 836 S.W.2d at 212. Moreover, the trial court possesses the discretion to resolve any conflicts arising from the evidence. Alvarez v. Espinoza, 844 S.W.2d 238, 246 (Tex.App.-San Antonio 1992, writ dism’d w.o.j.). Consequently, we may not overturn the trial court’s judgment unless it is apparent from the record that the trial court could have reached only one result. Walker, 827 S.W.2d at 839-40; Tiller v. Martinez, 974 S.W.2d 769, 777 (Tex.App.San Antonio 1998, pet. dism’d w.o.j.).

In an election contest, the trial court’s obligation is to ascertain whether the outcome is not a true outcome because, inter alia, illegal votes were counted. Tex.Elec. Code Ann. § 221.003(a)(1). An illegal vote is one that is not legally countable. Tex. Elec.Code Ann. § 221.003(b). Here, the trial focused on whether a number of the persons who voted in the election were actually residents of Loving County.

While the trial court made determinations on forty-six voters, this appeal concerns only six particular individuals.

Residence

The Texas Election Code defines residence as domicile; one’s home and fixed place of habitation to which one intends to return after any temporary absence. Tex. Elec.Code Ann.

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Kiehne v. Jones
247 S.W.3d 259 (Court of Appeals of Texas, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
247 S.W.3d 259, 2007 Tex. App. LEXIS 4869, 2007 WL 1793127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiehne-v-jones-texapp-2007.