Bob Honts and Herman \"Tex\" Moten, Sr. v. Jim Shaw and Mark A. Wallace ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-98-00217-CV



Bob Honts and Herman "Tex" Moten, Sr., Appellants

v.

Jim Shaw and Mark A. Wallace, Appellees



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT NO. 98-03024, HONORABLE RICK MORRIS, JUDGE PRESIDING

DISSENTING AND CONCURRING OPINION

   Section 11.003 of the Election Code declares that "a person may vote only in the election precinct in which the person resides," and section 43.001 requires that "[e]ach election precinct established for an election shall be served by a single polling place located within the boundary of the precinct." Tex. Elec. Code §§ 11.003, 43.001 (emphasis added). ⁽¹⁾ The two statutes were obviously intended to operate together; section 43.001 is essential to allow compliance with section 11.003.

It is undisputed that a large number of voters cast their ballots at polling places outside the election precincts in which they resided. Under section 11.003, these votes would appear at least to be illegal. The majority conclude, however, that "no illegal votes were counted." This conclusion appears to rest on the following rationale: Section 11.003 is mandatory in some cases but merely directory in others. The statute is mandatory when no misconduct or mistake on the part of election officials caused the voters to cast their ballots in the wrong precinct. In those cases, the "illegal votes are not to be counted." Harrison v. Jay, 271 S.W.2d 388, 389 (Tex. 1954). Section 11.003 is merely directory, however, in cases like the present where voters cast their ballots outside their precinct because of misconduct or mistake on the part of election officials. "Violations of directory provisions stemming from the conduct of election officials," the majority say, "do not result in illegal votes." Alvarez v. Espinoza, 844 S.W.2d 238, 242-43 (Tex. App.--San Antonio 1992, writ dism'd w.o.j.); Prado v. Johnson, 625 S.W.2d 368, 369-70 (Tex. Civ. App.--San Antonio 1981, writ dism'd). (Neither Alvarez nor Prado deals with section 11.003 or section 43.001 of the Election Code). I confess I do not understand fully the rationale by which the majority conclude that the legislature intended that the single sentence of section 11.003 should be both mandatory and directory at the same time. In my view, section 11.003 is always mandatory in effect, a matter quite independent of whether its violation should result in setting aside an election.

It would hardly be contended that all provisions of the Election Code are merely directory; some are, in fact, criminal statutes. And I believe it more useful to confine the discussion to judicial decisions that apply section 11.003 -- the statute said to be violated in the present case. These decisions contradict the notion that the statute is merely directory. The requirement that voters cast their ballots in the election precinct of their residence was originally a constitutional mandate applicable in all elections. Tex. Const. art. VI, § 2 (1876). A constitutional amendment in 1921 eliminated the requirement entirely; manifest abuses led in 1932 to re-adoption of the constitutional provision that voters must cast their ballots in the precinct of their residence in certain elections -- those pertaining to the issuance of government bonds, assumption of debt by government, or lending government credit. Tex. Const. Ann. art. VI, § 3a. See Ex parte White, 28 S.W. 542, 544 (Tex. Crim. App. 1894). (The majority rationale raises the interesting question of whether the constitutional requirement is mandatory or directive in the elections named).

While the constitutional requirement applied to all elections, it was held in 1909 that votes cast outside the precinct of the voters' residence were illegal and could not be counted. McCormick v. Jester, 115 S.W. 278, 287 (Tex. Civ. App. 1909, writ dism'd). ("This is a constitutional requirement, and cannot be ignored."). Even after the constitutional requirement was restricted to its present scope, a statute making the same requirement remained in effect. It required that "[a]ll voters shall vote in the election precinct in which they reside." This statute, the supreme court said, "needs no construction or explanation and by its very terms requires that a voter must cast his vote in the voting precinct where he resides. The decided cases have held this requirement must be obeyed if the vote is to be counted." Harrison, 271 S.W.2d at 389 (emphasis added). ⁽²⁾ If the vote may not be counted, when cast outside the precinct of the voter's residence, it necessarily follows that section 11.003 is mandatory--such votes must be deducted from the canvass result in arriving at the true outcome of an election. Harrison has in this respect been followed consistently in applying section 11.003 and its predecessors: See Greater Beauxart Garden Mun. Util. Dist. v. Cormier, 596 S.W.2d 597, 601 (Tex. Civ. App.--Beaumont 1980, no writ); Zuniga v. Almaraz, 514 S.W.2d 331, 334 (Tex. Civ. App.--San Antonio 1974, no writ); Guerra v. Pena, 406 S.W.2d 769, 777 (Tex. Civ. App.--San Antonio 1966, no writ); Teeple v. Beedy, 316 S.W.2d 311, 313 (Tex. Civ. App.--Amarillo 1958, no writ); Boroughs v. Williamson, 312 S.W.2d 717, 720-21 (Tex. Civ. App.--El Paso 1958, writ dism'd w.o.j.).

It is therefore true, as the majority says, that when voters cast ballots outside the precinct of their residence, free of misconduct or mistake by election officials, the votes shall not be counted. It is not true, however, that an opposite result is required when such votes are caused by misconduct or mistake on the part of election officials. In Harrison and Boroughs, the votes were held to be illegal even though voters cast their ballots in the precinct required erroneously by their poll-tax receipts issued to them for use by election officials. In Greater Beauxart and Teeple, election officials mistakenly designated polling places outside the district; the votes were therefore illegal and not counted. ⁽³⁾ In Zuniga, an election official mistakenly told the voter she should vote in the precinct even though she told the official she resided in another precinct; the vote was illegal and not counted.

I would hold Election Code sections 11.003 and 43.001 are mandatory. Ballots cast by voters outside the election precinct in which they resided were therefore illegal and may not be counted in the present case.

Election contests are statutory proceedings authorized and governed by the Election Code. In such proceedings, the court must "ascertain whether the outcome of the contested election, as shown by the final canvass, is not the true outcome because . . . illegal votes were counted." Tex. Elec. Code § 221.003. In the present contest, the record shows that deducting the illegal votes cast for Shaw--votes cast in violation of section 11.003--did not affect the result. After deducting the illegal votes, Shaw received 3,869 votes and Honts 3,703. With regard to the contest between Moten and Wallace, the record does not permit a court to determine the true outcome of the election in Precinct 250. I would, accordingly, hold that election void. See Tex. Elec. Code § 221.012(b).

I therefore concur in the judgment respecting the contest between Honts and Shaw; I dissent from the judgment respecting the contest between Moten and Wallace.

John Powers, Justice

Before Justices Powers, Jones and Dally^*  

Filed: September 8, 1998

Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

1. The word "shall," used in section 43.001, is ordinarily mandatory in effect. By expressly incorporating the Code Construction Act into the Election Code, the legislature presumably intended the word "shall," used in section 43.001, "to impose a duty." See Tex. Elec. Code § 11.003, Tex. Gov't Code § 311.016 (West Supp. 1998). The expression "may vote only," as used in Election Code section 11.003, constitutes a permission coupled with a limitation. See Tex. Gov't Code § 311.016; Am. Nat. Ins. Co. v. Rodriguez, 152 S.W. 871, 872 (Tex. Civ. App.--San Antonio 1913, no writ). The majority have not stated what legislative purpose requires a construction that sections 11.003 and 43.001 are merely directory. See Inwood North Homeowners' Ass'n, Inc. v. Meier, 625 S.W.2d 742, 743-44 (Tex. Civ. App.--Houston [1st Dist.] 1981, no writ).

2. The Harrison court distinguished "cases where the whole of the qualified electors . . . all voted at the same polling place." Harrison, 271 S.W.2d at 389. While the Harrison opinion does not identify the decisions it distinguished as inapplicable, the court evidently referred to Anderson v. Crow, 260 S.W.2d 227, 233-34 (Tex. Civ. App.--Austin 1953, mand. overr.); Waters v. Gunn, 218 S.W.2d 235, 236-37 (Tex. Civ. App.--Amarillo 1949, writ ref'd n.r.e); and Parks v. West, 108 S.W. 466, 470 (Tex. Civ. App. 1908), rev'd, 111 S.W. 726 (Tex. 1908). These decisions rest on the idea that when all voters in a government unit vote at a single voting place, the governmental unit itself is the election precinct contemplated by section 11.003 and its predecessors.

3. Contrary to the majority opinion, in these two decisions the voters voted in the right box but outside the geographical boundaries of the district.

ion, as shown by the final canvass, is not the true outcome because . . . illegal votes were counted." Tex. Elec. Code § 221.003. In the present contest, the record shows that deducting the illegal votes cast for Shaw--votes cast in violation of section 11.003--did not affect the result. After deducting the illegal votes, Shaw received 3,869 votes and Honts 3,703. With regard to the contest between Moten and Wallace, the record does not permit a court to determine the true outcome of the election in Precinct 250. I would, accordingly, hold that election void. See Tex. Elec. Code § 221.012(b).