Raul (Roy) Morales v. Rudy Segura

Opinion

ACCEPTED

04-15-00365-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

7/27/2015 3:13:46 PM

KEITH HOTTLE

CLERK

NO. 14-15-00365-CV

FILED IN

IN THE COURT OF APPEALS 4th COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 07/27/2015 3:13:46 PM KEITH E. HOTTLE

Clerk

******

RAUL (ROY) MORALES

Appellant

V.

RUDY SEGURA

Appellee

On Appeal from Cause No. 14-12-1070-CVA In the 81st Judicial District Court, Atascosa County, Texas Honorable David Peeples, Presiding

BRIEF OF APPELLANT

Keith A. Kendall

State Bar No. 11263250

Frank J. Garza

State Bar No. 07731590

DAVIDSON TROILO REAM & GARZA, P.C.

7550 West I.H. 10, Suite 800 San Antonio, Texas 78229

Telephone: (210) 349-6484 Facsimile: (210) 349-0041 Email: kkendall@dtrglaw.com

ATTORNEYS FOR APPELLANT

Oral Argument Requested

STATEMENT OF THE CASE

This is an election contest based upon the results of the election for City Council in the City of Jourdanton, Texas, in November, 2014. The case was heard by the Honorable David Peeples, Judge Presiding. The case proceeded to trial before Judge Peeples on June 8, 2015. The court noted its oral ruling on that same date (Tr. 139- 140) and Judgment was entered by the court on June 12, 2015, for Contestant. (CR 142-143.) Contestee gave notice of appeal. (CR 139-141.)

STATEMENT REGARDING ORAL ARGUMENT Oral argument would aid this Court in understanding the process that was employed by the Atascosa County Elections Administrator’s office in rejecting the votes cast by Sheldon Day.

STATEMENT OF JURISDICTION This Court has jurisdiction over this appeal pursuant to TEX. ELEC. CODE ANN.

§ 221.002(f) (West 2014).

ISSUES PRESENTED

1. Did the trial court err in finding that Contestant had proven that § 63.006 was applicable to voter, Sheldon Day?

2. Did the trial court err in finding that Contestant had proven, by clear and convincing evidence, that voter Sheldon Day met the requirements of § 63.006?

3. Did the trial court err in determining that § 63.006 applied to the voter, Sheldon Day, since application of § 63.009 was required under the undisputed facts?

4. Did the trial court err in finding that the provisions of § 63.009 applied to the situation involving voter, Sheldon Day?

5. Did the trial court err in failing to find that voter, Sheldon Day, was not a properly registered voter, more than 30 days before the election, in a

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precinct within the City of Jourdanton, Texas, for purposes of voting in the City elections in November, 2014, since he had not timely registered to vote in the November, 2014 city elections?

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TO THE HONORABLE COURT OF APPEALS:

Appellant, Raul (Roy) Morales, files his brief requesting that this Court reverse the trial court’s Order on Final Judgment ordering that the Contestant was the winning candidate for the Jourdanton City Council election held on November 4, 2014.

STATEMENT OF FACTS

After conducting the City of Jourdanton general election on November 4, 2014, for two-at-large city council positions, Contestee Raul Morales was declared one of the winners of the council elections. (Supp. CR 4-8.) Contestant Rudy Segura filed a contest to that election alleging, among other things, that irregularities prevented several voters from having their votes counted. (CR 5-11.) At the trial of the contest, Contestant contended that two voters, Mr. Sheldon Day and Mr. Carlos Pacheco, did not have their votes properly counted. (Tr. 9.) The vote of Carlos Pacheco was found by the court to have been properly excluded (Tr. 139), and Appellant does not complain of this decision on appeal.

As to voter Sheldon Day, Mr. Day testified that he had lived in the City of Jourdanton since May, 2014. (Tr. 28-29.) Approximately in June, 2014, he went to a local Department of Public Safety office and attempted to change his driver’s license address. (Tr. 29.) Mr. Day also testified that at the time that he presented to the Department of Public Safety office to change the address on his driver’s license, he had not considered changing his voter registration address, although he knew that there was a procedure to do that on the card. (Tr. 38-39.) When he handed his change of address form to the clerk, he had not checked the box to change his voter registration status residence. (Tr. 39.) As he handed his change of residence address to the clerk,

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he had not intended at that point in time to change his address for his voter registration. (Tr. 39.) After handing the clerk his change of address form, he was asked by the clerk if he also wanted to change his voter registration address. Mr. Day replied that he did. (Tr. 29.)

When he went in to early vote on October 20, 2014, he did not present any form of voter registration card. (Tr. 30-31.) When Mr. Day voted or attempted to vote on October 20, 2014, he listed as being registered to vote on a county road outside the City of Jourdanton. (Tr. 75.) He was not on the list of registered voters for any precinct within the City of Jourdanton. (Tr. 78, 96-99, 106.) Mr. Day was given a provisional ballot. (Tr. 79.) After Mr. Day cast his provisional ballot, the Elections Administrator checked with the Department of Public Safety to ascertain whether or not Mr. Day had ever changed his voter registration to reflect that he was a resident of a precinct within the City of Jourdanton and discovered that he had not. (Tr. 79-80.) Based on the information received from the Texas Department of Public Safety, the Elections Administrator determined that Mr. Day was not a registered voter 30 days before the election in the City of Jourdanton and his ballot was not counted. (Tr. 84-85.) Mr. Day was notified that his ballot had been rejected. (Tr. 85.) The Elections Administrator did not recall Mr. Day contacting the office to make any inquiry after he received the notice of rejection of his ballot for his provisional ballot for the City of Jourdanton. (Tr. 85.)

At the time Mr. Day attempted to vote on October 20, 2014, he was not a registered voter in either Precinct 13 or Precinct 19 within the City of Jourdanton, Texas. (Tr. 106, 115-116.)

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SUMMARY OF THE ARGUMENT

At the time voter, Sheldon Day, attempted to vote in the City of Jourdanton municipal elections on October 20, 2014, he was not a properly registered voter in any precinct within the city limits of the City of Jourdanton. He was, therefore, ineligible to vote that day in the municipal elections for the City of Jourdanton, since he had failed to properly transfer his voter registration from his former precinct in Atascosa County to a precinct within the City of Jourdanton.

Furthermore, at the time he presented to the early voting ballot location on October 20, 2014, he did not present any type of voter registration card. The provisions of TEX. ELEC. CODE ANN. § 63.006 were, therefore, not applicable to his situation. Rather, the provisions of TEX. ELEC. CODE ANN. § 63.009 control and were properly applied by the Elections Administrator’s office. Mr. Day’s provisional votes were, therefore, properly.

ARGUMENT AND AUTHORITIES

In an election contest, the contestant must prove that an elected official prevented an eligible voter from voting [emphasis added]. Tiller v. Martinez, 974 S.W.2d 769 (Tex. App.─San Antonio 1998, pet. dism’d w.o.j.); TEX. ELEC. CODE ANN. § 221.003. An election contestant’s burden is a heavy one and the declared results of an election will be upheld in all cases except where there is clear and convincing evidence of an erroneous result. Willet v. Cole, 249 S.W.3d 585, 589 (Tex. App.─Waco 2008, no pet.) Clear and convincing proof requires more proof than a preponderance of the evidence and is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved. Id. at 589.

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Contestant has not proved by any evidence, much less clear and convincing evidence, that voter Sheldon Day was an eligible voter in the precinct in which he was trying to vote in the City of Jourdanton election conducted in November, 2014. According to Janice Ruple, the Atascosa County Elections Administrator, Mr. Day would have been eligible to vote in either Precinct 13 had he registered in time. (Tr. 117-119.) Sheldon Day’s testimony was that he went to change his driver’s license address in the summer of 2014, but did not check the box indicating he wanted to register to vote. (Tr. 38-39.) Mr. Day further testified that when he went to the Texas Department of Public Safety to change his driver’s license address, his only intent was to (1) change the address on his driver’s license, (2) that he knew there was a space to change his voter’s registration but did not think about that day, (3) did not pay any attention to the box to check to change his voter’s registration address, (4) and never marked that box himself. (Tr. 38-39.)

Janice Ruple testified that in order to vote in a precinct, one must be registered to vote in that precinct 30 days before the election. (Tr. 75.) See TEX. ELEC. CODE ANN. § 13.143(a). No contrary evidence was admitted. Ms. Ruple further testified that Mr. Day was rejected as a voter in the City of Jourdanton election because he was not registered in a City of Jourdanton precinct 30 days before the election. (Tr. 75-76, 178.) Ms. Ruple confirmed that Mr. Day had not effectuated a change at the time he changed his driver’s license address with the Texas Department of Public Safety. (Tr. 78-80.)

Ms. Ruple testified that the election procedures published by the Elections Division of the Secretary of State’s office, admitted into evidence as Defendant/Contestee’s Exhibit 1 (CR 68-131), were followed with regards to Mr. Day’s

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attempt to vote in the City of Jourdanton election. (Tr. 75-76.) Ms. Ruple further testified that the process, as reflected on page 20 of Contestee’s Exhibit 1, was applicable to Mr. Day’s situation and was followed. (Tr. 80-85.) According to the Secretary of State’s office, the registration must be effective 30 days before the election. (Tr. 82-83.) There is no evidence that Mr. Day or anyone else checked the box to change the voter registration address at any point in time. (Tr. 79-80.)

The process that was followed by the Atascosa County Election Administrator was in conformance with TEX. ELEC. CODE ANN. § 63.009, which applies to a situation where the voter does not present a voter registration certification and is not on the list of registered voters for the precinct in which the voter is offering to vote. [Emphasis added.] In accordance with this section, Mr. Day was provided with a provisional ballot. (Tr. 79.) Mr. Day attempted to vote in a precinct (within the City of Jourdanton) in which he was not properly registered, so his ballot was not counted. (Tr. 79.) This is the proper procedure to follow according to the Texas Secretary of State Handbook for Election Judges and Clerks, admitted without objection as Defendant/Contestant’s Exhibit 1. (Tr. 140, 75.)

The trial court instead found that TEX. ELEC. CODE ANN. § 63.006 applied to the facts of this case. (Tr. 139.) Section 63.006, however, does not apply since Mr. Day did not present to the polling place with any kind of voter registration card.

The difference in the requirements of § 63.006 and § 63.009 are not to be ignored or taken lightly. It must be presumed that the legislature had a reason for the requirements of both sections and that both requirements needed to be met in the different situations presented. Both § 63.006 and § 63.009 deal with a situation where

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the voter presents proper identification at a polling place, but the voter’s name is not on the polling list as a registered voter for that precinct. The difference is whether the voter does (§ 63.006) or does not (§ 63.009) have a voter registration card. It is clear that Mr. Day did not have such a card. As a result, § 63.009 was properly applied.

When Mr. Day’s registration was checked by the Elections Administrative Office for the County of Atascosa, it was found that he had not properly registered more than 30 days before the election in a City of Jourdanton precinct. Mr. Day’s votes were, therefore, properly rejected by the Elections Administrator.

CONCLUSION

If the procedures, as enacted by the Texas legislature, are not strictly followed, there is the very real possibility, as articulated by the Elections Administrator, that people who are not registered within a jurisdiction could temporarily move into that jurisdiction less than 30 days before the election, claim that they are residents of that jurisdiction, execute an affidavit to that effect, and then vote, without any intention of remaining within that jurisdiction or establishing residency there. (Tr. 119-120.) The other very real concern is that voters may not have to register within a jurisdiction at all prior to 30 days before an election, if this decision is allowed to stand.

It is clear that the trial court judge failed to consider whether Mr. Day was a properly registered voter within the City of Jourdanton, having moved within the City of Jourdanton more than 30 days before the election, but not have properly transferred his voter registration to a precinct within the City of Jourdanton, more than 30 days before the election as required by TEX. ELEC. CODE ANN. § 13.143. The court further found that the provisions of § 63.006 were applied, § 63.009.

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PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court set this case for oral argument and that the Judgment of the trial court be reversed and rendered, disallowing the two votes cast by voters Sheldon Day and reinstating Mr. Raul Morales, Contestee, as the true winner of the election.

Respectfully submitted,

DAVIDSON, TROILO REAM & GARZA, P.C.

7550 West I.H. 10, Suite 800 San Antonio, Texas 78229-5815 Telephone: (210)349-6484

Facsimile: (210)349-0041

By: /s/ Keith A. Kendall

FRANK J. GARZA

State Bar No. 07731590

fgarza@dtrglaw.com

KEITH A. KENDALL

State Bar No. 11263250

kkendall@dtrglaw.com

ATTORNEYS FOR APPELLANT

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned certifies that the above Brief of Appellant has 1,891 words, excluding the sections identified in Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ Keith A. Kendall

KEITH A. KENDALL

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document has been served upon the following on this the 27th day of July, 2015:

Mr. Jose Garza Mr. Martin Golando Mr. Michael Moran 115 E. Travis Street, Suite 1235 San Antonio, Texas 78205

/s/ Keith A. Kendall

KEITH A. KENDALL

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APPENDIX

Trial Court Judgment .......................................................................................... TAB 1 Tr. 139 and 140 .................................................................................................. TAB 2 TEX. ELEC. CODE ANN. §13.143 (West 2014) ....................................................... TAB 3 TEX. ELEC. CODE ANN. §63.006 (West 2014)....................................................... TAB 4 TEX. ELEC. CODE ANN. §63.009 (West 2014)....................................................... TAB 5 TEX. ELEC. CODE ANN. §221.003 (West 2014) ..................................................... TAB 6