Laura Pressley v. Gregorio \"Greg\" Casar ( 2015 )

ACCEPTED
03-15-00368-CV
6950612
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/16/2015 12:14:01 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00368-CV
__________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
9/16/2015 12:14:01 PM
FOR THE THIRD SUPREME JUDICIAL DISTRICTJEFFREY D. KYLE
Clerk
AT AUSTIN
____________________________________________________________
LAURA PRESSLEY,
APPELLANT
VS.
GREGORIO “GREG” CASAR,
APPELLEE
____________________________________________________________
APPEAL FROM THE 201ST DISTRICT COURT
TRAVIS COUNTY, TEXAS
CAUSE NO. D-1-GN-15-000374
___________________________________________________________
APPELLANT’S BRIEF
____________________________________________________________
Mark Cohen
Attorney at Law
805 W. 10th Street, Suite 100
Austin, Texas 78701
(512) 474-4424 Telephone
(512) 472-5444 Facsimile
mark@cohenlegalservices.com
State Bar No.: 04508400
ATTORNEY FOR APPELLEE
___________________________________________________________
ORAL ARGUMENT REQUESTED
___________________________________________________________
IDENTITY OF PARTIES AND COUNSEL
The parties subject to this brief and the names and addresses of all
trial counsel are as follows:
Appellant in the trial court: Laura Pressley
Appellee in the trial court: Gregorio “Greg” Casar
Trial Counsel: David A. Rogers
State Bar No. 24014089
1201 Spyglass Drive, Suite #100
Austin, Texas 78746
(512) 923-1836 Telephone
(512) 201-4082 Facsimile
Firm@DARogersLaw.com
Mark Cohen
State Bar No. 04508400
805 W. 10th Street, Suite 100
Austin, Texas 78701
(512) 474-4424 Telephone
(512) 472-5444 Facsimile
Mark@cohenlegalservices.com
ATTORNEYS FOR
CONTESTANT DR. LAURA
PRESSLEY
Charles 'Chuck' Herring Jr.
State Bar No. 09534100
cherring@herring-irwin.com
Jess Irwin
State Bar No. 10425700
jess@herring-irwin.com
Lauren Ross
State Bar No. 24092001
laurenbross@herring-irwin.com
Herring & Irwin, L.L.P.
1411 West Avenue, Ste 100
APPELLANT’S BRIEF Page ii
Austin, TX 78701
(512) 320-0665 Telephone
(512) 519-7580 Facsimile
Kurt Kuhn
State Bar No. 24002433
Kurt@KuhnHobbs.com
KUHN HOBBS PLLC
3307 Northland Drive, # 310
Austin, Texas 78731
(512) 476-6000 Telephone
(512) 476-6002 Facsimile
ATTORNEYS FOR CONTESTEE,
GREGORIO "GREG" CASAR
Andrew M. Williams
Assistant County Attorney
Travis County Attorney's Office
P.O. Box 1748
Austin, Texas 78767
(512) 854-9472 Telephone
(512) 854-4808 Facsimile
andrew.williams@traviscountytx.g
ov
Appellate Counsel: Mark Cohen
State Bar No. 04508400
805 W. 10th Street, Suite 100
Austin, Texas 78701
(512) 474-4424 Telephone
(512) 472-5444 Facsimile
Mark@cohenlegalservices.com
ATTORNEY FOR APPELLANT
DR. LAURA PRESSLEY
APPELLANT’S BRIEF Page iii
David A. Rogers
State Bar No. 24014089
1201 Spyglass Drive, Suite #100
Austin, Texas 78746
(512) 923-1836 Telephone
(512) 201-4082 Facsimile
Firm@DARogersLaw.com
PRO SE
Kurt Kuhn
State Bar No. 24002433
KUHN HOBBS PLLC
3307 Northland Drive, # 310
Austin, Texas 78731
(512) 476-6000 Telephone
(512) 476-6002 Facsimile
Kurt@KuhnHobbs.com
Charles 'Chuck' Herring Jr.
State Bar No. 09534100
Herring & Irwin, L.L.P.
1411 West Avenue, Ste 100
Austin, TX 78701
(512) 320-0665 Telephone
(512) 519-7580 Facsimile
cherring@herring-irwin.com
ATTORNEYS FOR APPELLEE
GREGORIO “GREG” CASAR
APPELLANT’S BRIEF Page iv
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL................................................ii-iv
TABLE OF CONTENTS ..........................................................................v-vii
INDEX OF AUTHORITIES......................................................................viii-xi
STATEMENT OF ISSUES PRESENTED.....................................................2
Issue 1. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY
GRANTING APPELLEE’S MOTION FOR NO EVIDENCE SUMMARY
JUDGMENT? .............................................................................................2
Sub Issue 1. DID THE TRIAL COURT COMMIT
REVERSIBLE ERROR BY PREVENTING APPELLANT FROM
OBTAINING DISCOVERABLE DOCUMENTS? . . . . . . . . . . .2
Sub Issue 2. DID THE TRIAL COURT COMMIT
REVERSIBLE ERROR BY GRANTING A NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT WITHOUT READING
THE SUMMARY JUDGMENT EVIDENCE? . . . . . . . . . . . . . .2
Sub Issue 3. DID THE TRIAL COURT COMMIT REVERSIBLE
ERROR BY GRANTING APPELLE’S MOTION FOR NO
EVIDENCE SUMMARY JUDGMENT BECAUSE APPELLANT
PRODUCED MORE THAN A SCINTILLA OF EVIDENCE? . . 2
Issue 2. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY
AWARDING SANCTIONS AGAINST APPELLANT PRESSLEY? . . . . . .2
Sub Issue 1. WAS THE RIGHT TO SEEK SANCTIONS
FORECLOSED AND BARRED BY THE LANGUAGE OF THE
ONLY FINAL JUDGMENT DURING THE COURT’S PLENARY
POWER OR THE RULE 11 AGREEMENT THAT ALL ISSUES
BETWEEN THE PARTIES WERE RESOLVED? . . . . . . . . . .2
Sub Issue 2. WAS CHAPTER 10 OF THE CIVIL
PRACTICES AND REMEDIES CODE VIOLATED? . . . . . . . .2
APPELLANT’S BRIEF Page v
Sub Issue 3. IF APPELLANT PRESSLEY WAS SUBJECT
TO SANCTIONS, WERE THE SANCTIONS IMPOSED
JUSTIFIED AND APPROPRIATE? . . . . . . . . . . . . . . . . . . . . .2
Sub Issue 4. DID THE TRIAL COURT ABUSE ITS
DISCRETION BY IMPOSING SANCTIONS BASED ON
ATTORNEY’S FEES IN THE EVENT OF AN
UNSUCCESSFUL APPEAL WITHOUT ANY EVIDENCE? . . .2
STATEMENT OF CASE...............................................................................3
STATEMENT REGARDING ORAL ARGUMENT.........................................5
STATEMENT OF FACTS............................................................................6
SUMMARY OF THE ARGUMENT............................................................. 10
ARGUMENT...............................................................................................14
Issue 1. DID THE TRIAL COURT COMMIT REVERSIBLE
ERROR BY GRANTING APPELLEE’S MOTION FOR NO
EVIDENCE SUMMARY JUDGMENT? ...................................14
Sub Issue 1. DID THE TRIAL COURT COMMIT
REVERSIBLE ERROR BY PREVENTING APPELLANT FROM
OBTAINING DISCOVERABLE DOCUMENTS? ....................14
Sub Issue 2. DID THE TRIAL COURT COMMIT
REVERSIBLE ERROR BY GRANTING APPELLE’S MOTION
FOR NO EVIDENCE SUMMARY JUDGEMENT WITHOUT
REVIEWING THE EVIDENCE ATTACHED TO THE
OPPOSITION TO THE MOTION? .........................................17
Sub Issue 3. DID APPELLANT PRODUCE MORE
THAN A SCINTILLA OF EVIDENCE TO DEFEAT
APPELLEE’S MOTION FOR NO EVIDENCE SUMMARY
JUDGMENT? .........................................................................18
APPELLANT’S BRIEF Page vi
Issue 2. DID THE TRIAL COURT COMMIT REVERSIBLE
ERROR BY AWARDING SANCTIONS AGAINST
APPELLANT PRESSLEY? ....................................................36
Sub Issue 1. WAS THE RIGHT TO SEEK
SANCTIONS FORECLOSED AND BARRED BY THE
LANGUAGE OF THE ONLY FINAL JUDGMENT DURING
THE COURT’S PLENARY POWER OR THE RULE 11
AGREEMENT THAT ALL ISSUES BETWEEN THE PARTIES
WERE RESOLVED? ..............................................................36
Sub Issue 2. WAS CHAPTER 10 OF THE CIVIL
PRACTICES AND REMEDIES CODE VIOLATED?...............39
Sub Issue 3. IF APPELLANT PRESSLEY WAS
SUBJECT TO SANCTIONS, WERE THE SANCTIONS
IMPOSED JUSTIFIED AND APPROPRIATE? ......................53
Sub Issue 4. DID THE TRIAL COURT ABUSE ITS
DISCRETION BY IMPOSING SANCTIONS BASED ON
ATTORNEY’S FEES IN THE EVENT OF AN
UNSUCCESSFUL APPEAL WITHOUT ANY EVIDENCE? ...65
CONCLUSION............................................................................................67
PRAYER.....................................................................................................67
CERTIFICATE OF COMPLIANCE............................................................ 68
CERTIFICATE OF SERVICE....................................................................69
APPELLANT’S BRIEF Page vii
INDEX OF AUTHORITIES
CASES PAGE(S)
Alvarez v. Espinoza,
844 S.W.2d 238, 249 (Tex. App.--San Antonio 1992,
writ dism'd w.o.j.............................................................................. 35
Andrade v. NAACP of Austin,
345 S.W.3d 1 (Tex. 2011) .......................................................... 28, 29
Bader, Inc. v. Sandstone Prods. Inc.,
248 S.W.3d 802, 812 (Tex.App.—Houston [1st. Dist.]
2008, no pet.) ............................................................................ 40, 45
Baize v. Scott and White Clinic,
2007 Tex.Lexis 366 (Tex.App.—Austin, 2007 pet. den’d) .......... 18, 20
Brozynski v. Kerney,
2006 Tex. App. LEXIS 6817, 2006 WL 2160841, at *4
(Tex. App.—Waco Aug. 2, 2006, pet. denied) (citing Mattly v.
Spiegel, Inc., 19 S.W.3d 890, 896 (Tex. App.—Houston
[14th Dist.] 2002, no pet.)) ............................................................... 49
Dallas Indep. Sch. Dist. v. Finlan,
27 S.W.3d 220, 228-229, 2000 Tex. App. LEXIS 5773,
13-14 (Tex. App.—Dallas 2000, writ cert. den.) ......................... 23, 41
Duncan-Hubert v. Mitchell,
310 S.W.3d 92, 98 (Tex. App. Dallas 2010, pet. denied) ................. 31
Foust v. Hefner,
2014 Tex. App. LEXIS 8880, page 3 2014 WL 3928781
(Tex. App. Amarillo Aug. 12, 2014 no pet.) ............. 40, 41, 44, App.29
Garcia v. Avila,
597 S.W.2d 400, 403 (Tex. Civ. App. -San Antonio
1980, no writ) ................................................................................... 32
Garcia v. Peeples,
734 S.W.2d 343 (Tex 1987) ............................................................. 16
Gonzalez v. Villarreal,
251 S.W.3d 763, 773, 777-78 (Tex.App—Corpus Christi
2008, pet. denied) ...................................................................... 32, 35
Goode v. Shoukfeh,
APPELLANT’S BRIEF Page viii
943 S.W.2d 441, 448, 40 Tex. Sup. Ct. J. 487 (Tex. 1997) .............. 15
Great American Reserve Ins. Co. v. Britton,
406 S.W.2d 901, 907; (Tex. 1966) ................................................... 66
Griffin Indus. v. Grimes,
2003 Tex. App. LEXIS 3439, 2003 WL 1911993 (Tex. App. San
Antonio, 2003, no pet.) .................................................................... 41
Guerra v. Avila,
597 S.W.2d 400, 403 (Tex.Civ.App.—San Antonio 1980, no writ) ... 25
Herring v. Welborn,
27 S.W.3d 132, 2000 Tex. App. LEXIS 4567 (Tex. App.
San Antonio 2000 no Pet.) ............................................................... 41
In re: Bass,
113 S.W.3d 735, 743 (Tex 2003) ..................................................... 16
In re: Continental General Tire, Inc.,
979 S.W.2d 609, 613, 615 (Tex 1998) ................................. 14, 15, 16
In re: Dupont de Nemours & Co.,
136 S.W.3rd 218, 223 (Tex 2004) .................................................... 15
In re: Reynolds
2014 Tex. App. Lexis 7105 (no pet.) ................................................ 38
Jampole v. Touchy,
673 S.W.2d 869 (Tex 1984) ............................................................. 16
Jobe v. Lapidus,
874 S.W.2d 764, 767 (Tex. App. Dallas 1994, no pet.) .................... 38
Johnson v. Fourth Court of Appeals,
700 S.W.2d 916, 917, 29 Tex. Sup. Ct. J. 101 (Tex. 1985)
(quoted in In re: Dupont, supra at 223) ............................................ 15
Lane Bank Equip. Co. v. Smith S. Equip., Inc.,
10 S.W.3d 308, (Tex. 2000) ............................................................ 37
Lesikar v. Rappeport, 33 S.W.3d 282, 308 (Tex. App.—Texarkana
2000, no pet.) .................................................................................. 66
Low v. Henry,
221 S.W.3d 609 - 622 (Tex. 2007) ............................. 40-42, 53-65, 67
R.M. Dudley Constr. Co. v. Dawson,
258 S.W.3d 694, 708(Tex. App.- Waco 2008, pet denied) ............... 49
APPELLANT’S BRIEF Page ix
Rogers v. Walker,
2013 Tex. App. LEXIS 6452, Court of Appeals (Corpus
Christi, 2013 (pet. den.) ................................................................... 40
Schroeder v. Haggard,
2007 Tex. App. LEXIS 3725 ,7| 2007 WL 1423968 ( Ct. App.- San
Antonio 2007 no pet.) ...................................................................... 37
Texas Democratic Party v. Williams,
No. A-07-CA-115-SS (W.D. Tex. August 16, 2007) ......................... 30
Thottumkal v. McDougal,
251 S.W.3d 715, 717 (Tex. App.—Houston [14th Dist.]
2008, pet. denied) (citing Cire v. Cummings, 134 S.W.3d
835, 838 (Tex. 2004) ........................................................... 42, 49, 53
Valence Operating Co. v. Donell,
164 S.W.3d 656, 661 (Tex. 2004) .............................................. 19, 20
STATUTES PAGE(S)
Texas Civil Practice and Remedies Code § 10 ......................................... 40
Texas Civil Practice and Remedies Code § 10.001(3) ........................ 13, 45
Texas Civil Practice and Remedies Code § 10.001, et seq. ...................... 13
Texas Civil Practice and Remedies Code § 10.004 .................................. 63
Texas Civil Practice and Remedies Code § 10.004(b) .............................. 49
Texas Civil Practice and Remedies Code § 10.004(d) .............................. 41
Texas Constitution, Article VI, Section 4 ....................................... 26, 27, 51
Texas Election Code § 2.001 .................................................................... 25
Texas Election Code § 33.056 .................................................................. 34
Texas Election Code § 33.061 ............................................................ 34, 56
Texas Election Code § 52, Subchapter C ................................................. 26
Texas Election Code § 52.001 .................................................................. 25
Texas Election Code § 52.003 ............................................................ 23, 26
Texas Election Code § 52.031 ............................................................ 23, 26
Texas Election Code § 52.062 .................................................................. 26
Texas Election Code § 52.063 .................................................................. 26
Texas Election Code § 52.064 .................................................................. 26
Texas Election Code § 52.070 ...................................................... 23, 26, 27
Texas Election Code § 52.075 .................................................................. 30
APPELLANT’S BRIEF Page x
Texas Election Code § 66.051-.054 .................................................... 45, 47
Texas Election Code § 128.001 .......................................................... 21, 25
Texas Election Code § 213.013 .......................................................... 25, 34
Texas Election Code § 213.016 .......................................................... 22, 25
Texas Election Code § 214.049(e) ............................................................ 26
Texas Election Code § 221.003 .................................................................. 3
Texas Election Code § 221.003(1) ............................................................ 25
Texas Election Code § 221.003(3) ............................................................ 25
Texas Election Code § 221.012 ................................................................ 19
Texas Election Code § 221.013 ................................................................ 43
Texas Election Code § 231.009 .................................................................. 3
RULES PAGE(S)
Texas Rules of Appellate Procedure, Rule 45........................................... 66
Texas Rules of Civil Procedure, Rule 11 ............................................. 10, 38
Texas Rules of Civil Procedure, Rule 192.3(a) ........................................ 15
Texas Rules of Civil Procedure, Rule 192.3(d) ........................................ 15
Texas Rules of Civil Procedure, Rule 193.4 .............................................. 15
APPELLANT’S BRIEF Page xi
NO. 03-15-00368-CV
IN THE COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT
AT AUSTIN
____________________________________________________________
LAURA PRESSLEY,
APPELLANT
VS.
GREGORIO “GREG” CASAR,
APPELLEE
___________________________________________________________
APPELLANT’S BRIEF
STATEMENT OF ISSUES PRESENTED TO APPELLANT
Issue 1. DID THE TRIAL COURT COMMIT REVERSABLE ERROR BY
GRANTING APPELLEE’S MOTION FOR NO EVIDENCE SUMMARY
JUDGMENT?
Sub Issue 1. DID THE TRIAL COURT COMMIT REVERSIBLE
ERROR BY PREVENTING APPELLANT FROM OBTAINING
DISCOVERABLE DOCUMENTS?
Sub Issue 2. DID THE TRIAL COURT COMMIT REVERSIBLE
ERROR BY GRANTING A NO EVIDENCE MOTION FOR SUMMARY
JUDGMENT WITHOUT READING THE SUMMARY JUDGMENT
EVIDENCE?
Sub Issue 3. DID THE TRIAL COURT COMMIT REVERSIBLE
ERROR BY GRANTING APPELLE’S MOTION FOR NO EVIDENCE
SUMMARY JUDGMENT BECAUSE APPELLANT PRODUCED MORE
THAN A SCINTILLA OF EVIDENCE?
Issue 2. DID THE TRIAL COURT COMMIT REVERSABLE ERROR BY
AWARDING SANCTIONS AGAINST APPELLANT PRESSLEY?
Sub Issue 1. WAS THE RIGHT TO SEEK SANCTIONS
FORECLOSED AND BARRED BY THE LANGUAGE OF THE ONLY
FINAL JUDGMENT DURING THE COURT’S PLENARY POWER OR THE
RULE 11 AGREEMENT THAT ALL ISSUES BETWEEN THE PARTIES
WERE RESOLVED?
Sub Issue 2. WAS CHAPTER 10 OF THE CIVIL PRACTICES
AND REMEDIES CODE VIOLATED?
Sub Issue 3. IF APPELLANT PRESSLEY WAS SUBJECT TO
SANCTIONS, WERE THE SANCTIONS IMPOSED JUSTIFIED AND
APPROPRIATE?
Sub Issue 4. DID THE TRIAL COURT ABUSE ITS DISCRETION
BY IMPOSING SANCTIONS BASED ON ATTORNEY’S FEES IN THE
EVENT OF AN UNSUCCESSFUL APPEAL WITHOUT ANY EVIDENCE?
Page 2
STATEMENT OF CASE
The original Clerk’s Record is not sequentially numbered by volume.
There is one filed on July 2, 2015 that has volume 1 and 2 with pages
numbered from 1 to 5228 and there is another filed on July 29, 2015 which
is not designated as a supplemental record and has volumes 1, 2 and 3
with pages numbered from 1 to 7635. In order for the court to able to locate
the place in the record cited in this brief, Appellant will refer to the Clerk’s
Record filed on July 2, 2015 as 1 CR and the one filed on July 29, 2015 as
2 CR.
This is an election contest case. It is therefore to be expedited by this
Court. Tex. Elec. Code § 231.009. App.30. Appellant asserted below that
the Travis County Clerk failed to comply with state law to maintain image of
a ballot and there were so many mistakes and irregularities and illegal
votes counted and legal votes not counted that, although the exact vote
change is not capable of proof, nevertheless the Court should invalidate the
election because the true outcome of the election cannot be ascertained,
Tex. Elec. Code § 221.003. (1 CR 862). App.22.
The trial court granted Appellee’s No Evidence Motion for Summary
Judgment and entered a final judgment. (1 CR 4605; App.1) Appellant filed
a Notice of Accelerated Appeal.(1 CR 5224; App.4) Subsequently, on June
Page 3
24, 2015, the trial court entered an order that stated it was an amended
order, but omitted a Mother Hubbard clause or a declaration that it was
final, and stated it was going to award sanctions against Pressley and her
attorney David Rogers. 2 CR 2060; App.2. Out of an abundance of caution,
Pressley filed an amended Notice of Appeal including the June, 24, 2015
order. 2 CR 2062. App.5. After the hearings on the Third amendment to
the original Sanctions Motion, Suppl. IV CR 16, that had been filed before
the first final judgment on May 26, 2015, the Court entered another
judgment on July 23, 2015 Suppl. IV CR 52, App.3 that granted Casar’s
No Evidence Motion for Summary Judgment, assessed sanctions based on
Casar’s attorney fees in the amount of $90,000 ($50,000 against
Appellant’s attorney and $40,000 against Appellant) and an additional
sanction award in the event of an unsuccessful appeal, First Suppl. IV CR
52; App.3. The trial court entered a separate order awarding sanctions
supported by findings of fact and conclusions of law. Suppl. IV CR 19.
App.3. Appellant filed a request for additional and amended findings of fact
and conclusions of law. Suppl. III CR 45; App.6. Appellant filed a Second
Amended Notice of Appeal. Suppl. III CR 38. App.8. The trial court made
amended findings of fact and conclusions of law, Second Suppl. IV CR 3
filed on August 14, 2015; App.7.
Page 4
STATEMENT REGARDING ORAL ARGUMENT
This case warrants and indeed demands that the Court order oral
argument which is hereby requested.
This case is one of first impression as to whether an election can be
determined by counting cast vote records only without maintaining an
image of what the electronic voting system formats as a ballot despite state
law requiring it to do so. If a cast vote record alone is held not to constitute
a ballot that can be counted, other election officials in the state using
electronic voting systems may be required to modify their equipment and
procedures to comply with the Election Code. Therefore, the issues and
facts in this case need to be presented orally and the attorney’s permitted
to address the Court’s concerns regarding this complicated and important
case.
Page 5
STATEMENT OF FACTS
Appellant Pressley sued to set aside the results of the run-off election
for Place 4 on the Austin City Council. CR 860.
The County Clerk determined the outcome of the election at the
Recount by counting cast vote records (“CVRs”). 1 CR 1983, lines 8 - 2 5 ,
and 1 CR 1984, lines 1-11. CVRs do not have the elements of a
ballot required by the Texas Constitution and Texas Election Code.
(Compare the appearance of a paper ballot 1 CR 1805, 2 CR 2058, and 1
CR 1927, lines 14-18 with the CVR 1 CR 1803 and Ballot by Mail 2 CR
2058). The Hart electronic voting system, used in the election, formats the
electronic ballot a Travis County voter sees when he votes that satisfies
most of the statutory requirements of a ballot. 1 CR 1925, line 22 to 1928,
line 24; 1 CR 1805; 2 CR 2058; (2 CR 7334, lines 16 and 17. These ballot
images were not maintained by the Clerk for the run-off election (1 CR
1925, line 22 to 1928, line 24; 2 CR 7333, 2 CR 2058) except for the run-off
mail in ballots which were retained. The result of the mail in ballots was a
tie. (2 CR 3074 column “BBM [Ballot by Mail]”; 1 CR 1938, line 23 to 1939,
line 4) There were numerous “Invalid/Corrupt MBB [Mobile Ballot Box]
errors. 1 CR 2118, 2135, 2136, 2139, 2140, 2142, 2155 and 2 CR 1880,
1897, 1898, 1901, 1902, 1904, 1917. The MBB are the Hart voting system
Page 6
flash memory cards that stores votes as CVRs. 1 CR 2196, 1 CR 2203
and there were more Invalid/Corrupt MBBs than the County Clerk had seen
in all her years of conducting elections 1 CR 1978, lines 9-20; the “reader”
tallying the votes was broken 1 CR 1979, lines 4-5; also security seals of
the voting machines were broken and had to be resealed 1 CR 917, 922,
923, 924, 925, 926, 927, 929, 930.
The Hart voting system computer, which tallies the electronic votes,
the CVRs, was left open on several occasions and for extended periods of
time during the election and recount CR 1876, 2 CR 1883, 2 CR 1932, 2
CR 1932.
The County Clerk did not believe the Tally Audit Logs which recorded
and tabulated the MBB results and all of the other events in the election in
order to verify the results were reliable 1 CR 1995, lines 7-13. In addition,
the County Clerk ordered her employees not to print Result/Tally tapes on
the day of the run–off election (1 CR 1865) as required by the Secretary of
State (2 CR 707, 711, 726, 734). Appellant was told that election backup
tapes, Zero tapes and Results/Tally tapes would not be printed on the day
of the election by Mr. Winn, the Clerk’s Director of Elections; 1 CR 872, ¶
42; 874, ¶ 48. Images of the ballots cast were missing; 1 CR 1982, lines
19-21; A statistical analysis of the reported results of the run-off election
Page 7
indicated that the electronic tabulated results may not be believable (1 CR
861, ¶ 3, 1 CR 863, ¶ 10, 1 CR 865 ¶ 17 through 868 ¶ 26, 1 CR 933-936).
During the Recount, the County Clerk’s employees refused to allow the poll
watchers to witness the whole process of the printing of the CVRs from the
tally computer. 2 CR 7602. Specifically, Appellant and her official Recount
Watchers were not allowed to monitor the integrity of where the CVRs were
retrieved, the source where the retrieval occurred, or the copying of the
CVR files to an aggregated .pdf file. 1 CR 886 ¶ 93-96; 1 CR 1807
There were other irregularities and mistakes made in the conduct of
this election. Although Appellant’s phone bank received reports from
voters who were angry that the voting locations were moved from the
general election locations and did not vote, and a statistical analysis was
done that showed voters from District 4 who were “die-hard voters” who
consistently voted did not vote in this run-off (2 Suppl. RR 99, line 10
through 100 line 22.) When no one wanted to get involved as a witness
showing a disenfranchising affect the change in voting locations had on
them and the Clerk in discovery at least had some evidence the new
locations were posted at the old locations, Appellant amended her pleading
(1 CR 860) and dropped the change in voting locations as a mistake that
Page 8
may have affected the outcome of the election. 2 Suppl. RR 88, lines 6
through 100.
The only property that Pressley had that could be subject to
execution to recover a sanctions award was $1,000.00. All other property
owned by Pressley was either membership interests in an LLC, which
cannot be seized or its assets used because they belong to an independent
legal entity, or in her husband’s bank account and retirement account. 2
Suppl. R.R. 65, line 12 through 66, line 19.
All facts Pressley alleged in her pleading were true.
Page 9
SUMMARY OF THE ARGUMENT
This case challenges the failure to follow Election Code provision in
the conduct of an Austin City Council election. Because the Clerk did not
maintain images of ballots and counted only CVRs all votes except mail-in
ballots which were tied were counted illegally. In addition there were
numerous other irregularities, mistakes and violations of the Election Code
that could lawfully allow a court to decide it was impossible to ascertain the
true outcome of the election. For either reason supported by summary
judgment evidence, the trial court committed reversible error by granting
the no evidence summary judgment and imposing sanctions for raising
such issues.
In addition, at the request of counsel for Appellant the trial court hand
wrote in the first judgment it entered that the judgment disposed of all the
issues between all of the parties. Counsel for Appellee consented to and
agreed to this language being inserted into the first judgment. The trial
court then approved of this agreement and signed the first final judgment.
Therefore, the parties read into the record in open court that the issue of
whether sanctions should be imposed had been resolved by agreement
satisfying the requirements of the Tex. R. Civ. P., Rule 11, and the later
Page 10
actions taken related to sanctions violated Rule 11 and it was reversible
error to impose sanctions. There was another “order” entered within the
court’s plenary power but it did not satisfy requirements for extending its
plenary jurisdiction. The last judgment entered by the court which imposed
sanctions was entered after expiration of its plenary power. This means
that the only final Judgment in this case is the first one and the only issue is
whether the trial court erred in granting Appellee’s No Evidence Motion for
Summary Judgment. By arguing the sanctions issues Appellant is not
waiving the argument that the only valid final judgment did not impose
sanctions and sanction were barred by the Rule 11.
In addition, the trial court erroneously deprived Appellant of discovery
to which she was entitled and without examining the documents claimed to
be exempt as “Proprietary” thereby preventing Pressley from obtaining
evidence crucial and relevant to her claims and then ruled there was no
evidence without even reading the evidence attached to the Opposition to
the Motion The trial court’s failure to follow accepted process for producing
proprietary evidence and its failure to read the evidence attached to the
opposition to the motion before granting a No Evidence Motion was an
arbitrary abuse of discretion and caused reversible error.
Page 11
Appellant provided enough evidence in opposition to Appellee’s No
Evidence Motion for Summary Judgment to require that it be denied. A
canvass of an election can be overturned if the court cannot ascertain the
true outcome of the election because of illegal conduct, inaccuracies or
mistakes. It can also be overturned if illegal votes were counted. In this
case there was evidence of many irregularities that if taken as true could
lead a court to validly exercise its discretion to determine it cannot
ascertain the true outcome of the election.
The Election Code requires that images of the ballots be preserved
and counted in a manual recount. It is undisputed that images of the ballots
voters see when deciding who to vote for were not maintained or available
for the recount. Despite evidence presented in opposition to the No
Evidence Motion for Summary Judgment showing that a CVR did not have
any of the items on it that the Election Code required a ballot to have, the
court erroneously granted a no evidence summary judgment. The mail-in
ballots were tied and therefore a new election was required to be called.
The county clerk elected to conduct this election either using an electronic
voting system that did not comply with the Election Code or the system did
comply with the Election Code and she neglected to preserve images of the
ballots as required by law. The fact that there no images of the ballots kept
Page 12
requires the calling of a new election keeping images of ballots either by
getting the system that can do so or by programing the current system to
keep the images of the ballots it formats for voters to decide who to vote for
when they make that decision.
Finally, the trial court ordered sanctions under of the Texas Civil
Practices & Remedies Code § 10.001, et. seq. There was no evidence that
any fact pled both had “…no evidentiary support or, for a specifically
identified allegation or factual contention, was not likely to have evidentiary
support after a reasonable opportunity for further investigation or discovery”
Texas Civil Practices & Remedies Code § 10.001(3). App.10.
Because Pressley supplied the trial court with more than a scintilla of
evidence that would in itself justify voiding the election and because the
evidence in support of thereof was true and the cause of actions asserted
were recognized in law or in a good faith extension thereof, this Court
should reverse the trial court judgment rendering judgment that the
sanctions were not warranted and remand this case for trial.
Page 13
ARGUMENT
Issue 1. DID THE TRIAL COURT COMMIT REVERSABLE ERROR BY
GRANTING APPELLEE’S MOTION FOR NO EVIDENCE SUMMARY
JUDGMENT?
Sub Issue 1. DID THE TRIAL COURT COMMIT REVERSIBLE
ERROR BY PREVENTING APPELLANT FROM OBTAINING
DISCOVERABLE DOCUMENTS?
On April 13, 2015, the Court held that the County Clerk was not
required to produce to Appellant access to what the Clerk’s contract with
the computerized voting system manufacturer called its proprietary
information or inspection of direct computerized voting system used in the
election, eSlate voting program, Judge’s booth controllers, software or
hardware used in conjunction with eSlate. 1 CR 333, 475 and 4501.
The documents and items the Court allowed the County Clerk to
withhold from direct unprotected production and inspection were not
privileged except to the extent they may have constituted trade secrets.
There is no privilege for evidence termed “proprietary.” Indeed, everything
is “proprietary” to somebody. In re: Continental General Tire, Inc., 979
S.W.2d 609, 613 (Tex 1998).
To the extent such information and items for inspection may have
constituted trade secrets; they still may have contained information relevant
and material to the issues in this case. The proper procedure was for such
Page 14
items to be tendered to the Court in camera by the County Clerk for the
Court’s determination whether they were indeed trade secrets and with
respect to any trade secrets for the court to determine if they contain
information that could lead to the discovery of admissible evidence. Texas
Rules Civil Procedure, Rules 192.3 (a) and (d) App.27 and 193.4 App.28.
If they contain such discoverable information, they should still have been
ordered to be disclosed subject to a protective order designed to protect
their secrecy consistent with their need for use in this proceeding. In re:
Continental General Tire, Inc., 979 S.W.2d 609, 613 (Tex 1998)( it is an
abuse of discretion to fail to conduct an in camera inspection under claim
that documents are proprietary and decide if they can be produced under
protective order). See also In re: Dupont de Nemours & Co., 136 S.W.3rd
218, 223 (Tex 2004) (The trial court abuses its discretion in refusing to
conduct an in camera inspection when such review is critical to the
evaluation of a privilege claim). "[A] clear failure by the trial court to
analyze or apply the law correctly will constitute an abuse of discretion”
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917, 29 Tex. Sup.
Ct. J. 101 (Tex. 1985)(quoted in In re: Dupont, supra at 223) See Goode v.
Shoukfeh, 943 S.W.2d 441, 448, 40 Tex. Sup. Ct. J. 487 (Tex. 1997)(court
is required to conduct in camera inspection before restricting production)
Page 15
See also In re: Bass, 113 S.W.3d 735, 743 (Tex 2003). See Civil Practices
and Remedies Code § 134A.006. Jampole v. Touchy, 673 S.W.2d 869
(Tex 1984), Garcia v. Peeples, 734 S.W.2d 343 (Tex 1987). “Trade
Secrets and confidential information are not necessarily “privileged” matters
within the meaning of Rule 186a. If the information is material and
necessary to the litigation and unavailable from any other source, a witness
may be required to make disclosure.” In re: Continental General Tire, Inc.,
supra. at 615.
The court’s refusal to let Plaintiff’s expert examine the manuals, the
eSlate machines, the Judge’s boxes and the MBB’s to determine if they
were functioning properly on the date of the election and during early voting
and other material identified in the expert’s affidavit, severely prejudiced
Pressley’s ability to present reliable evidence and expert testimony. See
CR 2087-2088 and CR 4506 ¶¶ 17-18. Especially in light of all the corrupt
MBBs identified in the Tally Audit log, 1 CR 2118, 2135, 2136, 2139, 2140,
2142, 2155 and 2CR 1880, 1897, 1898, 1901, 1902, 1904, 1917. 1 CR
2088 and other irregularities identified in Appellant’s Opposition to the
Motions for Summary Judgment (1 CR 2043) and the absence of ballot
images that the voters used to make their decisions on who to vote for, the
items the Court refused to allow Appellant to have were vital not only for
Page 16
the expert but also for use in presenting all of the evidence Appellant had to
defeat the No Evidence Summary Judgment that is on appeal here.
Therefore, the Court should have ordered the withheld documents
produced to it in camera and ordered all non-trade secret items produced
and the trade secret items to be produced subject to a protective order.
Failure to follow the settled procedure for handling these discovery
requests was an abuse of discretion. It was harmful error because it
deprived Appellant of evidence that could have been added to the
Opposition to the Motion for Summary Judgment. Essentially, the trial
court prevented Appellant from obtaining relevant evidence to support her
claims and then held she did not have sufficient evidence to support her
claims. This was a clear abuse of discretion that contributed to the
erroneous judgment appealed from herein.
Sub Issue 2. DID THE TRIAL COURT COMMIT REVERSIBLE
ERROR BY GRANTING APPELLE’S MOTION FOR NO EVIDENCE
SUMMARY JUDGEMENT WITHOUT REVIEWING THE EVIDENCE
ATTACHED TO THE OPPOSITION TO THE MOTION?
The trial court admitted at the hearing on the Summary Judgment that
it had not read the evidence 3 RR 20-21. Granting a Motion for No
Evidence Summary Judgment without even reading the evidence attached
Page 17
to the Opposition to a No Evidence Motion is clearly arbitrary and
capricious.
Because the trial court acted arbitrarily and capriciously in entering
the judgment on appeal, this Court should reverse the judgment and
remand the case for trial so that the trial court can follow the law and review
the documents claimed to privileged in camera and order the production of
all material which may lead to the discovery of admissible evidence and
order production of material that is subject to trade protection subject to an
adequate protective order. The trial court should also be instructed to
review all evidence before granting or denying a summary judgment.
Sub Issue 3. DID THE TRIAL COURT COMMIT REVERSIBLE
ERROR BY GRANTING APPELLEE’S MOTION FOR NO EVIDENCE
SUMMARY JUDGMENT BECAUSE APPELLANT PRODUCED MORE
THAN A SCINTILLA OF EVIDENCE?
A.
STANDARD OF REVIEW ON NO-EVDIENCE MOTION
This Court has clearly stated that it applies the de novo standard of
review on appeals from no-evidence summary judgments. Baize v. Scott
and White Clinic, 2007 Tex. Lexis 366, p. 3 (Tex.App.—Austin, 2007 pet.
den’d). In the same case, the Court held that once a movant for no-
evidence summary judgment asserts the non-movant has no evidence on a
specific required element of her case, the burden shifts to the non-movant
Page 18
to raise a genuine issue of material fact on the challenged elements. In
making such review, the appellate court considers as true all evidence
favorable to the non-movant and indulges any reasonable inferences and
resolve doubts in favor of the non-movant. Valence Operating Co. v.
Donell, 164 S.W.3d 656, 661 (Tex. 2004).
Since this an appeal of a judgment granting a No-Evidence Summary
Judgment, 1 CR 4605, this standard applies to the disposition of this case.
The Argument under the issue will presume that this Court is conducting a
de novo review accepting the evidence attached to Appellant’s Opposition
to the Summary Judgment in the trial court, 1 CR 2043, as true and
indulging every reasonable inference in Appellant’s favor and resolving all
doubts in favor of Appellant.
The cause of action in this election contest is provided by statute:
"The tribunal shall declare the election void if it cannot ascertain
the true outcome of the election." Texas Election Code §
221.012 App.4.
The election code also states what evidence the Court can look to in
exercising its discretion that it cannot ascertain the true outcome of the
election:
“Sec. 221.003. SCOPE OF INQUIRY. (a) The tribunal hearing
an election contest shall attempt to ascertain whether the
outcome of the contested election, as shown by the final
canvass, is not the true outcome because:(1) illegal votes were
Page 19
counted; or ( 2) an election officer or other person officially
involved in the administration of the election:(A) prevented
eligible voters from voting;(B) failed to count legal votes; or(C)
engaged in other fraud or illegal conduct or made a mistake.”
App.27.
Therefore, if Appellant has produced in opposition to the No Evidence
Summary Judgment more than a scintilla of evidence including all
inferences in her favor and regardless of any evidence to the contrary
urged by Appellee that the County Clerk failed to follow the requirements of
the election code counting CVRs only while not maintaining images of
ballots cast or that illegal conduct, irregularities, or mistakes in the conduct
of the election process occurred, Appellee was not entitled to a no
evidence summary judgment and the trial court committed reversible error
in granting it. In reviewing the evidence submitted to determine whether it
is more than a scintilla the Court must accept Appellant’s evidence as true
regardless of evidence to the contrary submitted by Appellee and give all
reasonable inferences raised by the evidence to Appellant, ignoring
contrary evidence offered by Appellee. Valence Operating Co. v. Donell,
164 S.W.3d 656, 661 (Tex. 2004); Baize v. Scott and White Clinic, 2007
Tex.Lexis 438 (Tex.App.—Austin, 2007 pet. den’d).
1. Appellant offered evidence that the County Clerk did not comply
with the Election Code’s requirement to maintain ballot images
Page 20
Texas Election Code § 128.001, App.19, proscribes the requirements
for use of computerized voting system. The statutes of Texas provided the
Hart system could not have been used to conduct this election unless it
had:
“(2) a main computer to coordinate ballot presentation, vote
selection, ballot image storage, and result tabulation. and (b)
Notwithstanding Chapter 66, a system under this section may allow
for the storage of processed ballot materials in an electronic form on
the main computer..
The evidence presented by Appellant’s Opposition to the No
Evidence Motion for Summary Judgment (1 CR 2043) was more than a
scintilla of evidence (raised a genuine issue of material fact) that the Travis
County Clerk either did not use a system that complied with the foregoing
statute or, if she did, she failed store images of ballots and did not store
those images in compliance with law. While relying on all of the evidence
attached to the Opposition to the Motion for Summary Judgment, 1 CR
2043 the following appears to be sufficient in itself:
1. The affidavit of Contestant’s computer science expert that a
CVR is not a ballot image and that some federal reports and other studies
require the image of the ballot in addition to a CVR be maintained as a
check on the computer. 1 CR 2087, 2088.
Page 21
2. The clerk’s testimony that her office did not maintain images of
the ballot presented to voters by the computerized voting system when they
decide who to vote for 1 CR 1925, line 22 to 1928, line 24; 2 CR 2058 and
the exhibits showing the appearance of that ballot and the CVR 1 CR 1982,
Lines 19 -21; 2 CR 2058 which was the only item stored and relied on to
count votes 1 CR 1984, lines 9 -11. It is clear from this evidence and that
of the Appellant’s expert 1 CR 2087 and 2088 that a CVR is not an official
ballot and does not contain the legal components required of a Texas ballot
(1 CR 899 ¶ 146). Because "ballot image storage" was not used by Travis
County, as the statute requires, the required ballot images from the run-off
election are missing election records and there are no official ballots that
can be counted other than the Absentee/Mail in Ballots which resulted in a
tie (2 CR 3074 column BBM). Failing to print and produce the legally
required "images of ballots cast" for the election recount is a violation of
Texas Election Code § 213.016, App.20, by itself. Therefore, the only true
outcome that can be ascertained is a tie which requires a new election. (2
CR 3074, column “BBM” 1 CR 1938, line 23 to 1939, line 4).
"’Election records’ also include ballot boxes (containing voted ballots),
tally sheets, absentee ballots, Results/Tally tapes, and items like them, also
constitute "precinct election records," as defined and used in chapter 66 of
Page 22
the code. In addition, Section 273.003 lists election returns, voted ballots,
and the signature roster as specific types of election records. TEX. ELEC.
CODE ANN.§ 273.003 (Vernon 1986). Based on the uses of the term
‘election records’ and the examples listed within the code, we conclude
‘election records’ are those which memorialize the actual election and the
actual conduct of the election”. Dallas Indep. Sch. Dist. v. Finlan, 27
S.W.3d 220, 228-229, 2000 Tex. App. LEXIS 5773, 13-14(Tex. App. Dallas
2000). Therefore Ballot images are election records which memorialize the
actual election and the actual conduct of the election. Id. When the Texas
Constitution and statutes that define what a ballot must contain (1 CR 899,
¶ 146) is compared with what appears on the CVR (1 CR 1803, 1 CR 2944,
2 CR 613), it is clear that a CVR is not an image of a ballot as defined by
the Election Code. See Texas Election Code §§ 52.003 App.14, 52.070
App.31, and 52.031. App.17.
3. The affidavit of Appellant’s expert stating that a CVR is a data
file, not an image file. 1 CR 2087 and 2088.
4. Evidence that was presented that supports the Hart Voting
System is capable of formatting ballot images and Travis County did not
retain them:
Page 23
a) The Clerk’s testimony that the Hart computerized voting
system formats an image of a ballot meeting statutory
requirements that the voter is shown when deciding who to vote
for on the eSlate program 1 CR 1925, line 22 to1828, line 24;
b) The Ballot by Mail (1 CR P. 1805 and 2 CR P. 2058) is
formatted and saved using the Hart Ballot Now system’s Ballot
Now Image Processor (1 CR 2055, ¶ 34, 1 CR 2633, 2656,
2659, 2664, 2666, 2774, 2781, 2782, 2791, 2792, 2794, 2829,
2830);
c) The Secretary of State’s letter to Travis County that the Hart
Voting System used by Travis County Clerk preserves “ballot
images” (2 CR 7619). 1 CR 643; 3 RR 52, line 6 through 53,
line 8;
d) The eSlate displays ballot styles that are presented to voters
when they are making their decision who to vote for show the
various components of a legal ballot (name of the Election, date
of the election, voting squares, instructions, all candidate
names, etc. 1 CR 2942, 1 CR 1927, lines 14-19). The ballot
styles are formatted and saved on a MBB using a ballot image
program in the Ballot Origination Software System (BOSS) as
Page 24
defined by the Ballot Now Manual. 1 CR 2664. Therefore, Hart
does have a program that is apparently capable of combining a
flash card with a ballot image onto an MBB which can plugged
into the Tally system (1 CR 2656).
Texas Election Code § 52.001 App.13 is clear that “the vote in an election
is by official ballot” and Texas Election Code § 2.001 App.11 states, “…to
be elected to a public office, a candidate must receive more votes than any
other candidate for office.” Since the legally required “images of ballots
cast” (Texas Election Code § 128.001 App.19 and § 213.016 App.20) are
missing, the election should have been recanvassed with the only legal and
official ballots, the mail in ballots, (1 CR 4667, ¶¶ 186 – 187) and the
recount should have been recanvassed as an exact tie. CVRs are not
mentioned in any part of the Texas Constitution or the Texas Election Code
and are not official ballots. If there are missing election records that are
material in determining the true outcome of the election, the Court is
authorized to void the election. Guerra v. Avila, 597 S.W.2d 400, 403
(Tex.Civ.App.—San Antonio 1980, no writ). If the Clerk counts illegal
votes, those votes are cancelled under Texas Election Code § 221.003 (1)
and (3) App.22. This leaves the election tied because the only images of
ballots the computerized voting system kept were the eScan program’s
Page 25
mail-in ballots and those resulted in a tie, authorizing the ordering of a new
election as requested by Appellant. 2 CR 3074, Column “BBM”; 1 CR
1938, line 23 to 1939, line 4.
Ballots are defined in Texas Election Code, Chapter 52, Subchapter
C. For the purposes of this suit, the most salient portions of that
subchapter are Sec. 52.003 App.14 and Sec. 52.070 App.31.
It is clear from these provisions that the Legislature did not permit this
election to be decided by counting or recounting CVRs which do not
resemble or contain the components of an official ballot in any respect. See
also Texas Election Code § 214.049 (e).
Note that the Travis County CVR 1 CR 2994; 2 CR 613. does not
contain:
a. a unique serial/ticket number (Texas Constitution, Article 6,
Section 4, App.9 and Texas Election Code § 52.062, App.15.)
b. the election name and candidate (Texas Election Code §
52.063), of Joint Special Runoff Election, Travis County,
App.16; 52.031. App. 17.
c. the election date (Texas Election Code § 52.063), of December
16, 2014
d. the designation of Official Ballot (Texas Election Code §
52.064), App.33.
e. a voting square to the left of each candidate’s name (Texas
Election Code § 52.070), App.32, and
Page 26
f. voting instructions (Texas Election Code § 52.070). App.32.
The CVR does not meet the Constitution’s minimum requirement that
an election be conducted by a numbered ballot since the CVR is not
numbered. Texas Constitution, Article VI, Section 4 App.9. Therefore, any
decision by a state official like the Secretary of State or the Travis County
Clerk that allowed the true outcome of an election to be decided by
something other than a numbered official ballot would be unconstitutional.
Indeed, the Clerk confessed that a ballot image and a CVR are not the
same thing 2 Suppl. RR 189, lines 2 - 9.
Thus, Appellant’s evidence attached to her Opposition to Contestee’s
No Evidence Motion for Summary Judgment showing that a CVR is not a
ballot and the outcome of this election was not determined by counting
ballots or images of ballots which were not preserved and therefore missing
creates more than a scintilla of evidence that the true outcome of this
election cannot be determined. The trial court could not grant this motion by
relying on any contrary evidence that Appellee attached to a Motion for
Traditional Summary Judgment which was not granted and is not involved
in this appeal. 1 CR 4605; 2 C.R. 2060.
The CVR has been around a long time. If the Legislature wanted to
make it permissible to determine the true outcome of an election by
Page 27
counting CVRs instead of ballots as it has defined them it could have done
so (subject to the Constitution’s mandatory requirement that elections be by
numbered ballots).
The question in this case is whether absent specific statutory
authority this court will allow our elected officials to be determined by a
computer data tally only of what the voter’s ballot says without the backup
of an actual ballot or an image of one. In this day and age with computer
crashes, errors and hacks, the wisdom of our Legislature in requiring the
system to maintain images of the actual ballots is clearly good public policy
and should be presumed to be its intention.
Appellees have asserted that the issues raised in this case have
been decided in Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex. 2011).
That case has nothing to do with issues raised in this case. Andrade,
supra, dealt solely with standing and equal protection. The issue in that
case was whether the voters who alleged that they were denied equal
protection of laws under the constitution because they were required to use
the Hart electronic voting system and other voters in statewide elections
were not required to do so. The Court first held these voters had standing
to raise the equal protection claims and then held there was no violation of
equal protection by use of different voting systems in different counties in a
Page 28
statewide election. The Court then held that the voters did not have
standing to attack the lack of ballot verification and therefore never reached
the merits of anything like the issues involved in this case. Here there is no
challenge to Appellant’s standing. Andrade, supra, is very instructive in its
description of how the Hart system worked when an election is held:
“Voters arriving at the polls in counties using the eSlate are given a unique
access code. The voter enters the code into the eSlate, which then displays
the ballot. Voters turn a dial to highlight their ballot choice and then press
"enter" to make a selection. After a voter completes his selections, the
eSlate displays a ballot summary page. If the voter's choices are correctly
displayed, the voter presses the "cast ballot" button, and the vote is
recorded. See Voter Instructions, TRAVIS COUNTY, purchased the eSlate
system in 2001 and has used it since 2003.” Id. at 5. (emphasis added)
The critical aspects of this description for this appeal are the Supreme
Court’s acknowledgement that the system used by Travis County “displays
the ballot” (emphasis added). This is the only relevant part of Andrade,
supra and actually makes Appellant’s point that this ballot is not printed and
not preserved even though it is formatted 1 CR 1927, lines 13 -18 and 1
CR 1805 for every voter to see by the Hart voting system. As a result, the
evidence eSlate formats a ballot raises at least a fact issue as to whether
Page 29
the Secretary of State had authority under the Texas Election Code §
52.075 App.37 to imply in its instructions and definitions that a CVR is
synonymous with an image of a ballot as defined in the Election Code.
The other case Appellee has relied on is Texas Democratic Party v.
Williams, No. A-07-CA-115-SS (W.D. Tex. August 16, 2007). In that case,
voters complained that the eSlate deprived them of the ability to "emphasis
vote"; that is, to cast a straight party vote and then also again vote for a
particular candidate within that party—to make sure their votes count for
these particular candidates. The voters argued that, if they attempted to
emphasis vote, the eSlate would de-select, rather than register a vote for,
the individual candidate. The trial court held that even assuming that the
eSlate impacted voters' ability to cast emphasis votes, the use of DREs
was constitutionally permissible. Therefore, neither case dealt with either
of the issues involved in this case (does a CVR satisfy the election code
requirement to maintain an image of a ballot and can several irregularities
and mistakes in the conduct of an election permit a court to void the
election by making it impossible to ascertain the true outcome?).
The trial court conceded that if a CVR is not an image of a ballot then
Appellant would be entitled to a new election, 4 RR 60, line 13 to 62, line
20, then erroneously granted a no evidence summary judgment that
Page 30
Appellant did not produce more than a scintilla of evidence that a CVR is
not an image of a ballot.
2. APPELLANT PRODUCED MORE THAN A SCINTILLA OF
EVIDENCE THAT THERE WERE IRREGULARATIES AND MISTAKES IN
THE CONDUCT OF THE ELECTION TO DEFEAT APPELLEE’S MOTION
FOR NO EVIDENCE SUMMARY JUDGMENT.
“A court trying an election contest shall attempt to ascertain
whether the outcome shown by the final canvass was not the
true outcome because illegal votes were counted or because
an election official or other person officially involved in the
administration of the election (1) prevented eligible voters from
voting, (2) failed to count legal votes, or (3) engaged in other
fraud or illegal conduct or made a mistake. Texas Election
Code Ann. § 221.003(a) (Vernon 2010). To set aside the
outcome of an election, the contestant must prove by clear and
convincing evidence that a violation of the election code
occurred and such violation materially affected the outcome of
the election. McCurry v. Lewis, 259 S.W.3d 369, 372-73 (Tex.
App.--Amarillo 2008, no pet.). The outcome of an election is
‘materially affected’ when a different and correct result would
have been reached in the absence of irregularities or
‘irregularities in the conduct of the election render it impossible
to determine the majority of the voters' true will.’ Id. at 373, see
also Gonzalez v. Villarreal, 251 S.W.3d 763, 773, 777-78 (Tex.
App.--Corpus Christi 2008, pet. denied) ; Ware v. Crystal City
Indep. Sch. Dist., 489 S.W.2d 190, 191-92 (Tex. Civ. App.-San
Antonio 1972, writ dism'd).” Duncan-Hubert v. Mitchell, 310
S.W.3d 92, 98 (Tex. App. Dallas 2010, pet. den.) (emphasis
added).
In Duncan-Hubert, supra the court reversed the grant of a no
evidence summary judgment based on the affidavit of an expert showing
that were so many mistakes and irregularities that it could be impossible to
Page 31
ascertain the true outcome of the election even though the Contestant
could not point to actual votes affected. This is strikingly similar to the case
at bar except Appellant presented much more evidence of mistakes,
irregularities and counting of illegal ballots.
In the case of Gonzalez v. Villarreal, 251 S.W.3d 763, 773, 777-78
(Tex. App.--Corpus Christi 2008, pet. denied) the Court also held after a
trial that mistakes and irregularities were enough to overturn an election. It
held:
“{T}the election code does not require a trial court to rely solely
on ‘illegal votes’ in attempting to ascertain the true outcome of
an election. As is evident from section 221.003, the outcome of
an election can be muddled not just by the counting of illegal
votes or the failure to count legal votes, but also by mistakes
made by election officers. TEX. ELEC. CODE ANN. §
221.003(a)(2)(C) See Alvarez, 844 S.W.2d at 242. A
contestant may allege and prove that "irregularities rendered
impossible a determination of the majority of the voters' true
will.’ Guerra, 865 S.W.2d at 576.”
Gonzalez v. Villarreal, 251 S.W.3d 763, 773, 777-78 (Tex. App.--Corpus
Christi 2008, pet. denied).
In Garcia v. Avila, 597 S.W.2d 400, 403 (Tex. Civ. App. -San Antonio
1980, no writ), the Court held that missing election records alone could
justify overturning an election. In this case, the trial court clung to the
erroneous belief that appellant was required to identify specific vote
Page 32
changes caused by the mistakes 4 RR 104, lines 3-17. The missing
images of items that met the statutory definition of a ballot and satisfied the
Texas Constitution’s minimum requirements of what must be on a ballot
that is counted to determine the outcome of an election was more than
enough to void the election and appellant provided ample proof of this to
avoid summary judgment.
In addition, Appellant produced evidence that there were numerous
Invalid/Corrupt MBBs,1 CR 2086 - 2087, 1 CR 2118, 2135, 2136, 2139,
2140, 2142, 2155 and 2 CR 1880, 1897, 1898, 1901, 1902, 1904, 1917; 1
CR 2056 paragraph 41 through 2059 paragraph 48; that there were more
Invalid/Corrupt MBBs than the County Clerk had seen in all her years of
conducting elections (MBBs contain the CVRs from a voting machine) 1 CR
1978 lines 9-20; that the “reader” tallying the votes was broken 1 CR 1979
line 4-5; that seals were broken bringing the security and accuracy of the
MBBs into question 1 CR 917, 922, 923, 924, 925, 926, 927, 929, 930; that
the computer that tallies the CVRs was left open on several occasions and
for extended period of time that the County Clerk did not believe the tally
log which recorded the MBBs and all of the other events in the election in
order to verify the results were reliable 1 CR 1995 lines 7-13; that the
County Clerk ordered her employees not to print zero tapes and result
Page 33
tapes on the day of the run–off election as required by the Secretary of
State 1 CR 1865 and Appellant was told the same by Mr. Winn, the Clerk’s
Director of Elections 1 CR 872 paragraph 42; 874, paragraph 48; that
images of the ballots cast were missing; 1 CR 1982 lines 19-21; that a
statistical analysis of the reported results of the run-off election indicated
that the results were not believable and that the county clerk’s employees
refused to allow the poll watchers to witness the whole process of the
printing of the CVRs from the tally computer 1 CR 886 paragraph 93..
Specifically, Appellant and her official Recount Watchers were not
allowed to monitor the integrity of where the CVRs were retrieved, the
source where the retrieval occurred, or the copying of the CVR files to an
aggregated pdf file. 1 CR 886, ¶ 93. Since they were arguably allowed to
do so by Texas Election Code § 33.056 App.12 and § 213.013 App.33 that
obstruction may have violated Texas Election Code § 33.061. App.35
These errors relate to the counting of votes and the scope of their
effect on the vote count is significant even though that by their nature and
the court’s erroneous discovery order it is impossible to say how many
illegal votes were counted or how many legal votes were not counted.
Based on the cases cited above, Appellant’s Opposition to the No Evidence
Motion for Summary Judgment produced much more than a scintilla of
Page 34
evidence that would have allowed a court to exercise its discretion at a trial
and decide that the cumulative effect of these violations of the election
code, irregularities and mistakes “rendered impossible a determination of
the majority of the voter’s true will” Gonzalez v. Villarreal, supra. Therefore,
the Court erred in granting Appellee’s no evidence motion for summary
judgment and this court should reverse the judgment below and remand it
for trial.
The court in Alvarez, supra said it best:
“But perceptions of fairness are also important. The public
must have confidence that the election process is fair for all
candidates. It is therefore imperative that election officials
comply with code procedures. Those who have studied history
and have observed the fragility of democratic institutions in our
own time realize that one of our country's most precious
possessions is the commitment of our public officials to the rule
of law -- fair and evenhanded application of rules known in
advance -- and the widespread acceptance of election results.
Repeated abuse of power by election officials can chip away at
public respect for our legal institutions and undermine the
willingness of losing candidates to accept the results. Cases
may arise in which official disregard of the election laws is so
pervasive that the courts could not let the election stand, even
though the contestant might not be able to prove that the
violations caused an incorrect outcome.” Alvarez v. Espinoza,
844 S.W.2d 238, 249 (Tex. App.--San Antonio 1992, writ dism'd
w.o.j.)
The Court in Alvarez, supra did not believe there were enough errors
to exercise its discretion to void the election but it did analyze a much less
Page 35
compelling bed of evidence in making that decision. It did not hold the
evidence of errors and missing records was no evidence. It just said it was
enough to reverse the trial court’s exercise of discretion at trial. Therefore,
the evidence submitted by appellant in opposition to the no evidence
motion for summary decision entitled her to a trial and the judgment should
be reversed and the case remanded to afford her the trial the law affords
her.
Issue 2. DID THE TRIAL COURT COMMIT REVERSABLE ERROR BY
AWARDING SANCTIONS AGAINST APPELLANT PRESSLEY?
Sub Issue 1. WAS THE RIGHT TO SEEK SANCTIONS
FORECLOSED AND BARRED BY THE LANGUAGE OF THE ONLY
FINAL JUDGMENT DURING THE COURT’S PLENARY POWER OR THE
RULE 11 AGREEMENT THAT ALL ISSUES BETWEEN THE PARTIES
WERE RESOLVED?
At the conclusion of the summary judgment hearing Appellant’s
counsel asked the court to rule that the judgment it was about to enter
resolved all issues between all parties. Appellee’s counsel agreed to this
language and the court wrote it in at the bottom of the judgment. 4 RR 12,
lines 18 -21; 1 CR 4605; App.1. This Judgment was entered on May 26,
2015. The next time the court entered a final judgment amending the May
26, 2015 final judgment was on July 23, 2015 App.3, CR Suppl. IV 52, well
beyond the court’s 30 day plenary authority which expired on June 25,
Page 36
2015. The order entered on June 24, 2015 App.2. CR Suppl. IV 16 did not
amend the earlier judgment in that it was not a final judgment in itself
because it affirmatively showed it was not intended to resolve all issues
and it did not include the finality language the first judgment had.
“…O{o}nly a motion seeking a substantive change will extend the appellate
deadlines and the court's plenary power under Rule 329b(g) App. 36. See
Cavalier Corp. v. Store Enter, Inc., 742 S.W.2d 785, 786 (Tex. App.—
Dallas 1987, writ denied).” Lane Bank Equip. Co. v. Smith S. Equip., Inc.,
10 S.W.3d 308, (Tex. 2000); ; See Schroeder v. Haggard, 2007 Tex. App.
LEXIS 3725 (Ct. App.- San Antonio 2007 no pet.) In Schroeder, supra the
Court held that a document filed in the record and issued by the Court that
anticipated further action by the Court did not extend the Court’s plenary
power past 30 days. This June 24, 2015 order did not amend a judgment
by entering a different final judgment or by modifying the existing judgment
and it did not order a new trial. Therefore, it did not qualify as an order
extending the plenary jurisdiction of the Court for another 30 days. There
was no post judgment motion filed (the second amended and third
amended motions for sanctions were filed after the final judgment was
signed on May 26, 2015, but both related back to a pretrial motion filed on
April 23, 2015, (1 CR 479) which had already been resolved by the finality
Page 37
language in the May 26, 2015 judgment that all issues between the parties
pending at that time had been resolved as of that date. 1 CR 4605. The
Court’s plenary jurisdiction was not extended to entertain a sanctions
motion that was pending at the time the Court entered a final judgment.
Jobe v. Lapidus, 874 S.W.2d 764, 767 (Tex. App. Dallas 1994, no pet.).
Therefore, the Court did not have plenary jurisdiction to enter the July 23,
2015 final judgment containing sanctions and same was void. Id.; In re:
Reynolds 2014 Tex. App. Lexis 7105 (no pet. h.) voiding post judgment
sanction requested pretrial.
In addition, the language that Appellee agreed to in the first judgment
that resolved all pending issues (the Motion for Sanctions was pending at
the time) (1 CR 479) was made in open court and approved by the Court.
The agreement between the parties on the record and approved by the
Court constituted a binding agreement enforceable pursuant to Texas
Rules of Civil Procedure, Rule 11, App.26 that no other issues, including
the sanctions motion, could be taken up by the trial court after the
agreement was approved by the Court. Therefore, the first judgment and
the Rule 11 Agreement approved by the Court, precluded the Court under
settled principals of law form conducting a hearing and entering a sanctions
Page 38
order. Doing so was therefore a clear abuse of discretion and reversible
error.
Sub Issue 2. WAS CHAPTER 10 OF THE CIVIL PRACTICES
AND REMEDIES CODE VIOLATED?
A.
Standard of Review
In the event this Court does not decide that it was an abuse of
discretion to take up the Motion for Sanctions and the Court’s sanction
order was within its plenary power, the following is the case law describing
the standard of review for deciding whether to reverse a sanction order.
“A trial court's ruling on a motion for sanctions is reviewed under an
abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838
(Tex. 2004). The test for abuse of discretion is not whether, in the opinion
of the reviewing court, the facts present an appropriate case for the trial
court's action, but whether the court acted without reference to any guiding
rules and principles. Id. at 838-39. The trial court's ruling should be
reversed only if it was arbitrary or unreasonable. Downer, 701 S.W.2d at
242, Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial court
abuses its discretion when its ruling is arbitrary and unreasonable without
reference to any guiding rules and principles. Id. at 838-39. In conducting
Page 39
our review, we are not limited to a review of the ‘sufficiency of the evidence’
to support the trial court's findings; rather, we make an independent inquiry
of the entire record to determine if the court abused its discretion by
imposing the sanction.” Scott Bader, Inc. v. Sandstone Prods., Inc., 248
S.W.3d 802, 812 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
“Generally, courts presume that pleadings and other papers are filed
in good faith. Low, 221 S.W.3d at 614; GTE Commc'ns Sys. Corp. v.
Tanner, 856 S.W.2d 725, 730 (Tex. 1993). The party seeking sanctions
bears the burden of overcoming this presumption of good faith. Low, 221
S.W.3d at 614.” Rogers v. Walker, 2013 Tex. App. LEXIS 6452, 13th Court
of Appeals, 2013; Foust v. Hefner, 2014 Tex. App. LEXIS 8880, page 3
(Tex. App. Amarillo Aug. 12, 2014 no pet.). App.30.
B.
Appellee’s Burden Below
It seems clear that to carry its burden, Appellee must have presented
enough evidence to overcome the presumption that the Appellant has not
violated Texas Civil Practice and Remedies Code, Chapter 10. App.10.
“In order for a party seeking sanctions to prevail, there must be little or no
Page 40
basis for claims, no grounds for legal arguments, a misrepresentation of
law or facts, or a legal action that is sought in bad faith. Herring, 27 S.W.3d
at 143. It is the movant's burden to establish there was no evidentiary
support for the allegations in plaintiffs' petition. See Id.” Griffin Indus. v.
Grimes, 2003 Tex. App. LEXIS 3439, 2003 WL 1911993 (Tex. App. San
Antonio, 2003, no pet.); Herring v. Welborn, 27 S.W.3d 132, 2000 Tex.
App. LEXIS 4567 (Tex. App. San Antonio 2000 no Pet.) See on rehearing,
Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 228 (Tex. App. -Dallas
2000). In addition with regard to monetary sanctions against a party the
entire record must show that the pleading contains factual allegations that
have no evidentiary basis (See the limitation against the imposition of
monetary sanctions against a party in Texas Civil Practice and Remedies
Code, Section 10.004 (d)) App.10. See also Low v. Henry, 221 S.W.3d
609, 615 (Tex. 2007). Appellant did not sign a pleading and given her
status as a party the court abused its discretion by imposing monetary
sanctions against her in light of Texas Civil Practice and Remedies Code,
Section 10.004 (d), App.10, unless the entire record shows the particular
factual allegation challenged by the motion has no evidentiary basis or was
not likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery. See Foust, supra at page 3. Since there
Page 41
was no evidence at the sanction hearing that any allegation met the test for
imposition of monetary sanctions against a party the trial court’s sanction
order was arbitrary and unreasonable without reference to guiding rules
and principles that by ignoring that:
1. There is a presumption that the allegations were not subject to
sanctions that was not overcome;
2. There was no evidence or it was against the great weight and
preponderance of the evidence enabling the trial court to reach a
conclusion that factual allegations challenged by the motion has no
evidentiary basis or was not likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery either
was evidence or was against the great weight of the evidence after a
review of the entire record;
3. The trial court made no determination or inquiry into whether lesser
sanctions than $40,000 plus expenses and appellate attorney’s fees
were available and sufficient to accomplish its goals;
4. The trial court misapplied the Low factors in determining the
appropriateness and amount of the sanctions;
5. There trial court did not determine that and there was a direct nexus
between any improper conduct and the sanctions imposed. Low, 221
S.W.3d at 614; and
6. The sanctions imposed were not tailored to remedy any identified
prejudice allegedly caused by the alleged conduct. Thottumkal v.
McDougal, 251 S.W.3d 715, 717 (Tex. App.—Houston [14th Dist.]
2008, pet. denied) (citing Cire v. Cummings, 134 S.W.3d 835, 838
(Tex. 2004).
Page 42
C.
Argument
Appellant incorporates herein her argument under Issue 1 which
shows record references that her allegations had evidentiary support
and valid legal arguments that were sufficient to render a sanction
order arbitrary and capricious and reversible error.
It is clear from the court’s conclusions of law that it imposed sanctions
for assertion of facts on the following:
1. Zero tapes were not printed on the day of the election (contained
in all seven contest pleadings) 3 Suppl. RR 222, line 17 – 223, line
2.
2. Some voter’s did not vote because the voting location they went to
in the general election were closed and consolidated elsewhere.
(not in the 6th amended final pleading) 3 Suppl. RR 219, line 2 –
220, line 9.
3. Michael Winn and Dana DeBeauvoir violated the criminal statute
prohibiting interference with poll watchers. 3 Suppl. RR 221, lines
2-10. Election Code 221.013, App. 24
It is also clear the Court imposed sanctions for making the legal
contention that the above-referenced facts were evidence that could be
used to void an election. See also discussion in 3 Suppl. RR 223, lines 11-
24.
Page 43
Although there are findings of fact related the allegation that the Clerk
violated the election code by counting and maintain only CVRs when she
was required to maintain and count images of ballots cast, the trial court
made it clear that it was not sanctioning for those allegations, 3 Suppl. RR
223, lines 8-10 and made no conclusion of law that doing so was
sanctionable. Suppl. III CR 36 – 51. App.3.
The trial court’s view of the factual and legal allegations in the various
incarnations of the Contest Petitions is totally contrary to the clear great
weight and preponderance of the evidence in the record as a whole. The
fact that plaintiff lost the no evidence Motion for Summary Judgment
(especially when that was an erroneous ruling) or that Appellant attempted
to pursue an unpopular claim or one that someone else would not have
pursued cannot form the basis of a sanctions order. Foust, supra, at page
3. App.29. In Foust the Court overturned a sanctions order based on the
failure to produce evidence of causation at trial when there was no
evidence of improper motive at the time the allegation was made.
Indeed, Appellant went through the unusual effort of attaching almost
all of the evidence upon which the factual allegations of mistakes and
irregularities in the election were based to each version of the Contest and
Page 44
did several statistical analyses before filing this Contest. Other than the
allegation that voting locations were changed this court need only look at
the 6th Amended Contest, 1 CR 863, since the allegations therein were
developed after “further investigation and discovery” and therefore
obviously complied with Section 10.001(3), App.10. Bader, Inc. v.
Sandstone Prods. Inc., Supra. The pleading should be read as a whole for
a complete listing of evidence attached to it.
The pleading included evidence showing the following and more with
respect to the evidentiary basis for its allegations:
1. Tally Audit logs showing multiple missing Logout entries 1 CR
1807, 1CR 1814, 1 CR 1863, 1 CR 1863.6;
2. Tally Audit Logs showing multiple "Invalid/Corrupt MBB Mobile
Ballot Box errors (1 CR 1811, 1828, 1829, 1832, 1833, 1835, 1848, 1978
line 4 - 20, 1979 line 4.);
3. Judges' Booth Controller (JBC), Judge's Envelope cover states,
"DO NOT PRINT THE TALLY" (1 CR 1865); Election Code § 66.051-054.
App.18
4. Travis County Clerk, Dana DeBeauvoir's Deposition regarding no
Results Tapes, (1 CR 2008, lines 13-15). Tally Audit Logs, 1967, 1968,
1974, 1975, 1976, 1977, 1978) Election Code § 66.051-.054. App.18
Page 45
5. There were no zero tapes printed on the day of the election. As
noted in the Sixth Amended Petition, p. 12-13 ¶¶ 38 – 41, (1 CR 871-872),
the Texas Secretary of State requires the printing of Zero Tape Reports
during Early Voting and on Election Day at each precinct/polling location.
Zero Tape Reports are defined by the Texas Secretary of State as: “A
Zero Tape is the tape that is printed when the voting machine is first set up
at the polls. It is called a Zero Tape since all contests or propositions
should have zero votes next to each name or question.” (2 CR 712; 2
Suppl. RR 78, line 9 to 79, line 13). Also, according to the Texas Secretary
of State’s Election Advisory No. 2012-03(6)(g)(vi), 2 CR 707 and 726
related to Zero Tapes:
“Opening the Polls:
1. At a minimum print one zero tape from each
applicable device, as follows: The presiding judge, an
election clerk, and not more than two watchers, if one or
more watchers are present, shall sign the zero tape. 2.
Maintain zero tapes in a secure location to be returned
with election materials (i.e. Ballot Box #4 or other secure
means designated by the general custodian of election
records).” (emphasis added)(Exhibit J, p. 8 (2 CR 707))
In Contestee’s Third Amended Motion for Sanctions, it is claimed
that Appellant actually produced a zero tape as an Exhibit. (IV Suppl. CR 9)
Page 46
The document referred to is not a Zero Tape, 1 CR 1875, and App.36,
because it does not contain all of the information required to be in a Zero
tape in order for it to perform its function. It does not contain the following
information required by the Texas Secretary of State for Zero Tapes (2 CR
710):
“All contests should have zero votes next to each name” In fact,
Contestant and Contestee’s District 4 is not listed on the partial tape
and neither Pressley nor Casar is listed with zero votes next to their
respective names,
“Zero Tape is printed when voting machine is first set up at polls” 1
CR 710. In fact, the partial tape Travis County produced was not
printed when the voting machines were set up at the polls during
Early Voting (December 1) or during Election Day (December 16).
The partial tape was printed on November 26th, a week prior to Early
Voting,
“The presiding judge…shall sign the Zero Tape” 1 CR 703, item vi.1.
The partial tape produced by Travis County and attached to Appellant’s
pleading was not signed by an election judge. (1 CR 1875) See larger
version App.36; Election Code § 66.051-.054. App. 18
Travis County Clerk testified at the Sanctions Hearing on June 18,
2015 that tapes were not printed on Election Day. 2 Suppl. RR 224, lines
3-8. She also testified that a letter exempting her from printing Zero tapes
for the general election (2 CR 7618-7619) applied to the run-off even
though she did not have a similar letter referring to the run-off. 2 Suppl.
Page 47
RR 183 lines 5 - 16 which implies that the Clerk did not print zero tapes on
the day of the election. As noted in the Sixth Amended Petition, P. 13 ¶
42 (1 CR 872 ¶ 42), Appellant communicated with the Travis County
Elections Division Director and was told no Zero Tapes would be printed
for the run-off. In addition the testimony at the sanctions hearing made
clear that Appellant had a lot of evidentiary support for her allegations that
Zero tapes were not printed on the day of the election. 2 RR 48 to 50, line
5.
6. The allegation that voters were disenfranchised because their
voting location was changed from the locations at which they voted in the
general election was likely to have evidentiary support after a reasonable
opportunity for further investigation and discovery given the statistical
evidence indicating voters who always vote in run-offs did not vote in this
one and numerous complaints to Pressley’s phone bank and the likelihood
that voters would be willing to testify about their disenfranchisement. 2
Suppl. RR 88, line 6 to 96, line 10, line 20. When it became clear that the
voters who the statistical study indicated did not vote because of a change
in voting locations would not be willing to testify and other expected
reasonably likely evidentiary support would not materialize, Pressley
dropped that claim from her final pleading since it turned out to be a
Page 48
“hairball”. 2 Suppl. RR 88, line 6 to 96, line 10, line 20. This is precisely
what the sanctions power is designed to encourage. To use removing an
allegation after the anticipated evidence did not materialize, which should
be rewarded not sanctioned, is an abuse of discretion. Thottumkal v.
McDougal, 251 S.W.3d 715, 717 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied) (citing Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004))
and Texas Civil Practice and Remedies Code § 10.004(b). App.10. This
evidence proves Appellant had the appropriate state of mind when she
made this allegation and was not subject for sanctions for doing so. “The
party moving for sanctions must prove the pleading party's subjective state
of mind.” Brozynski v. Kerney, 2006 Tex. App. LEXIS 6817, 2006 WL
2160841, at *4 (Tex. App.--Waco Aug. 2, 2006, pet. denied) (citing Mattly v.
Spiegel, Inc., 19 S.W.3d 890, 896 (Tex. App.--Houston [14th Dist.] 2002, no
pet.)). “In the case of Section 10.001(1), the movant must show, and the
Court must describe and explain, that the pleading was filed for the
improper purpose of harassment. See TEX. CIV. PRAC. & REM. CODE
ANN. § 10.001(1) ; id. § 10.005 ("A court shall describe in an order
imposing a sanction under this chapter the conduct the court has
determined violated Section 10.001 and explain the basis for the sanction
imposed.")”. R.M. Dudley Constr. Co. v. Dawson, 258 S.W.3d 694, 708
Page 49
(Tex. App.—Waco 2008, pet denied). Since Appellant clearly had an
evidentiary basis for making the allegation or reasonably expected she
would obtain witness statements or proof there were no signs posted
redirecting voters from their original vote locations, the presumption of good
faith was not overcome. Therefore, it was an abuse of discretion to
sanction Appellant for making this allegation.
7. Appellee’s counsel, in an effort to prejudice the trial court,
continuously accused Pressley and Rogers of directly accusing Dana
DeBeauvoir and Michael Winn of criminal conduct. 3 Suppl. RR 25, line 21
to 26, line 4. The pleadings do not directly accuse any particular election
official of committing a crime. 1 CR 877, ¶¶ 60 - 62 and 886, ¶ 93 to 887, ¶
96. The allegations of interference with poll watchers was supported by
affidavit (2 CR 7620) and was only included because illegal conduct is one
of the grounds a court looks at in deciding to overturn an election.
Nowhere in these allegations is Dana DeBeauvoir even mentioned, and all
that Mr. Winn is directly accused of doing is not answering phone calls.
Indeed, there is no direct allegation that either had any personal
involvement in the illegal activities. 1 CR 875-878. Therefore, sanctions
based on the totally erroneous proposition that Appellant had no evidence
or legal basis to accuse Dana DeBeauvoir and Michael Winn of criminal
Page 50
conduct is arbitrary and capricious. To the extent there may have been
some innuendo (which is denied) that the actions regarding the obstructing
the poll watchers from viewing of printing of the CVRs, the pleading merely
makes true allegations supported by affidavit and cites election code
provisions and criminal statutes that arguably could apply to those facts.
They certainly can be said to reasonably argue for an extension or
interpretation of legal principals. The trial court and the Appellee never
pointed out any cases holding that Rogers’ application of the factual
affidavits to the criminal code was erroneous. Put another way, there are
no cases that hold that it is not a violation of the cited as criminal provision
to commit the acts verified by the affidavits as having been committed.
Since there was some evidentiary support or such was reasonably
likely to be obtained for each of the sanctioned allegations, the Court
abused its discretion by sanctioning Pressley for making them.
In summary, Appellant conducted her own reasonable inquiry before
filing the lawsuit. She looked at the Texas Constitution, Article VI and
Election Code provisions defining an official ballot (Chapter 52) and
requiring a computerized voting system to maintain images of them and
compared that to the information appearing on the CVRs obtained at the
recount (2 CR 5116). She looked into reports from other states about the
Page 51
need for maintaining a cross check on the CVR consisting of the ballot that
voters looked at when deciding who to vote for (2 CR 7515). She did a
statistical analysis which indicated many voters did not vote in the run-off
whose voting location was changed when they have always voted in run-
offs in the past, and had reports from voters who refused to go to the
consolidated location (2 CR 1580-1614), She was told by the Director of
Elections that zero tapes and result tapes would not be printed on the day
of the election (1 CR 872, ¶ 42) and obtained affidavits for poll watchers
that were told the same thing (2 CR 7620). She saw instructions from the
Clerk instructing election personnel not to print result tapes (1 CR 1865).
She had information from her poll watchers stating they were denied
access to certain parts of the process of printing the CVRs for the run-off
and was present when it occurred (1 CR 886, ¶ 93). The trial court’s
holding that she did not make a reasonable inquiry is an abuse of discretion
given the entire record in this case some of which is cited above. For the
same reason, the trial court’s holding that there was no evidentiary basis
for these allegations and it was not reasonably likely discovery would
produce any evidence was likewise arbitrary, capricious and unreasonable.
Since Appellant did not engage in any conduct for which the court had the
authority to impose sanctions, it committed reversible error in doing so.
Page 52
As the Texas Supreme Court noted in Low, supra at 621: “We
recognize that in some cases, a party may not have evidence that proves
each specific factual allegation at the time a lawsuit is filed. Certainly, the
law does not require proof of a case without reasonable time for discovery.”
All of the allegations made in the first 5 contests had evidentiary support by
the time discovery was over and the 6th amended contest was filed. This is
not like Low when an examination of medical records showed undisputable
evidence that the allegations made and sanctioned were untrue.
Sub Issue 3. IF APPELLANT PRESSLEY WAS SUBJECT TO
SANCTIONS, WERE THE SANCTIONS IMPOSED JUSTIFIED AND
APPROPRIATE?
Introduction
“When determining if the trial court abused its discretion, the
appellate court engages…” in a two-part inquiry. First, we must ensure that
the punishment was imposed on the true offender and tailored to remedy
any prejudice caused. Id. at 839; see also Save Our Springs Alliance, Inc.
v. Lazy Nine Mun. Util. Dist., 198 S.W.3d 300, 319 (Tex. App.--Texarkana
2006, pet. denied). Second, we must make certain that less severe
sanctions would not have been sufficient. Cire, 134 S.W.3d at 839; Save
Our Springs, 198 S.W.3d at 319-320.” Thottumkal v. McDougal, 251
S.W.3d 715, (Tex. App. Houston 14th Dist. 2008).
Page 53
The trial court made findings and conclusions in a futile effort to show
it had applied the factors the Texas Supreme Court recommended
sanctioning courts to look at in its decision in Low v. Henry, 221 S.W.3d
609, 622 f/n 5 (Tex. 2007). However, the trial court misapplied the Low
factors to the actual evidence in this case. It followed lock step with the
unusual testimony of Appellee’s attorney (unusual because he was clearly
testifying to contested facts that were really his argument for sanctions and
not evidence) even though he was not designated as an expert on
sanctions over Appellant’s counsel’s objection. It is clear that this Court did
not consider Mr. Herring’s testimony on the Low factors and this Court
should not either. 3 Suppl. RR 48, line 16 to 49, line 2.
By imposing sanctions in disregard of the basis for the considerations
it was required by the Supreme Court in Low, supra to look at the trial court
abused its discretion. Therefore, even if the Court could enter the sanctions
order and even if sanctionable conduct had occurred, the factor’s in Low
required the court not to impose monetary sanctions and certainly not in the
amounts it ordered.
2. The Low Factor
The first Low factor, the good faith or bad faith of the offender, weighs
against awarding sanctions for alleging that certain actions of the Clerk’s
Page 54
office violated a criminal sanction in the Election Code under this factor.
The trial court found Appellant is only responsible under this factor for the
factual allegation that the clerk’s employees did not let them see the entire
process of printing the ballots. There is absolutely no evidence that this
factual allegation was without evidentiary support. There is a presumption
that the allegations and the pleadings were made in good faith. There was
no evidence at the sanctions hearing or elsewhere that even tended to
overcome this presumption. The complaint the trial court points to is about
characterizing the interference truthfully alleged as having occurred as a
criminal violation. Doing so was purely a legal conclusion drawn by Mr.
Rogers from the true facts reported and alleged by Appellant. There is no
evidence either Appellant or Rogers acted in bad faith. Indeed, Appellant’s
factual and legal positions in this case were made in good faith. The
allegations that there was some interference with Poll Watcher’s request to
view the entire process involved in printing the CVRs for the recount was
true and there was no evidence they were fake. Most importantly,
Contestant and her official Recount Watchers were not allowed to monitor
the integrity of where the CVRs were retrieved (1 CR 1803) the source
where the retrieval occurred, or the copying of the CVR files to an
aggregated pdf file. (1 CR 886 ¶¶ 93-96). The Election Code makes it
Page 55
illegal to knowingly prevent a watcher from observing an activity the
watcher is entitled to observe Election Code Section 33.061, App.34.
Therefore, there was interference with poll watchers’ activities and arguably
this was a criminal violation of the Election Code.
It was Appellee’s contention that the law does not empower poll
watchers to observe anything except the printer’s regurgitation of CVRs.
The law is not clear on this point and it certainly was not sanctionable to
allege the restrictions that actually did occur violated the law. Sanctions
based on the first Low factor were an abuse of discretion.
The second Low factor weighs against imposing sanctions against
Appellant. There was no evidence Appellant or Rogers acted willfully or
negligently with vindictiveness in asserting that the clerk failed to print zero
tapes on the day of the election since Michael Winn reported the same to
Pressley and the Clerk had admitted she did not in her testimony. There is
no evidence Appellant or Rogers acted willfully or negligently with
vindictiveness in asserting or in relying on a statistical analysis and reports
from irate potential voters in alleging what Pressley reasonably believed
would develop convincing evidence that voters were disenfranchised by
change in voting locations and when the discovery evidence did not
develop as she hoped dropping that allegation. While she did allege true
Page 56
occurrences, supported by third party affidavits that illegal activity did occur
2 CR 7620, 7333; a factor in determining whether the true outcome could
be ascertained, she did not directly accuse any particular person
responsible for that activity”. (See earlier discussion not repeated here.)
Appellant conducted her own reasonable inquiry which evidences this
case was filed in good faith and not out of the kind of ill will or bad motive
which is the inquiry in the second Low factor. Since Appellant did not
engage in any conduct for which the court had the authority to impose
sanctions, it committed reversible error in doing so.
The third Low factor, the knowledge, experience, and expertise of the
offender, may weigh slightly but insignificantly in favor of awarding
sanctions against Rogers. Rogers is an experienced attorney who has
handled election contests previously and holds himself out as being
knowledgeable regarding election contests. This knowledge supports his
use of the true facts alleged showing no images of ballots and numerous
irregularities and mistakes could legally permit a court to exercise
discretion to hold that the true outcome of the election could not be
ascertained. In any event Roger’s knowledge experience and expertise
cannot justify sanctions against Pressley who justifiably relied on the ability
of her lawyer. Although Pressley has a PhD in Chemistry, a business
Page 57
owner and is actively involved in her community, and has appeared before
Austin City Council at least thirty times. She was personally involved in
proposing drafts to her attorney for portions of the Contests and discovery.
This does not mean that Pressley had the knowledge, expertise and
experience in election law and contests that would make any of her actions
in this case sanctionable. The focus of this factor is clearly did the
sanctioned person know the conduct was sanctionable? Clearly Pressley’s
resume does not fit into this factor. At best, it shows that she is not stupid
and is active in her community. Chemists and business owners who are
active in their community should not be more likely to be sanctioned for
those reasons. Indeed her PhD in Chemistry weighs against sanction of
any kind because it gives credibility to the statistical analysis she did as
part of her reasonable inquiry before hiring Rogers to file this case since a
chemistry doctorate clearly requires intimate knowledge of statistics.
The fourth Low factor, any prior history of sanctionable conduct on
the part of the offender weighs against the imposition of sanctions. There
is no evidence of such a prior history.
The fifth Low factor, the reasonableness and necessity of the out-of-
pocket expenses incurred by the offended person as a result of the
misconduct weighs against the imposition of sanctions because Appellee
Page 58
has not paid any attorney’s fees and will not be sued for them. 3 Suppl. RR
79, line 6 through 80, line 6. Appellee is not out of pocket for attorney’s
fees and will never be required to pay any attorney’s fees. 3 Suppl. RR 79,
line 6 through 80, line 6. There was no evidence at the sanctions hearing
of the reasonableness of Appellee’s out of pocket expenses or that they
were incurred as the result of any particular misconduct by Appellant or
Rogers.
The sixth Low factor, the nature and extent of prejudice, apart from
out-of-pocket expenses weighs against the imposition of sanctions. There
was no evidence of this at the hearing. The only relevant evidence was
that he was never accused of any personal misconduct so he could not
have been prejudiced.
The seventh Low factor, the relative culpability of client and counsel,
is relevant as to which person to assess how much of the sanctions if
sanctions were appropriate, the evidence of Appellant proving assistance
to her attorney has little if any significance since many clients assist their
attorneys for various reasons including their better familiarity with the facts
and a hope of saving money. Her involvement was not much more than
any client of providing information of the facts to the attorney and being
sure they were accurately represented in the pleadings. (2 Suppl. RR 42
Page 59
line 23 to 43, line 25). These normal activities by Appellant should not
weigh in favor of sanctions in the Low analysis of sanction imposition.
There was no evidence of any action by Appellant contributed to the
pleading found by the trial court to be sanctionable (zero tapes, voting
locations or refusing to allow poll watchers and the candidate to see
various aspects of the printing of the CVRs). Indeed all of Appellant’s
factual allegations were true and had some evidentiary support as outlined
and attached to the various Contest pleadings and as testified to at the
sanctions hearing.
The eighth Low factor, the risk of chilling the specific type of litigation
involved, also weighs heavily against awarding sanctions. This factor
weighs against awarding sanctions of $90,000.00 for filing an election
contest 44.44% of which are assessed against the Candidate because
doing so will obviously have a chilling effect on any decision by another
candidate to exercise their statutory right to file an election contest for fear
that a court who holds they failed to prove their case by clear and
convincing evidence at trial or in response to a Motion for Summary
Judgment will impose crippling sanctions on them. The consequences of
chilling a candidate from even attempting to prove the wrong candidate is
guiding our public policy is so consequential that the huge monetary
Page 60
sanctions awarded in this case would allow a person to serve as an elected
official no matter how many election laws were violated and no matter how
many mistakes and irregularities occurred. The trial court’s award is
designed to prevent a litigant from making true allegations that a court
eventually decides do not persuade the court to call for a new election
without incurring huge sanctions should the court rule against the
candidate. What lawyer will ever take an election contest case if he will
expose himself and his firm to $50,000 in sanctions? This case, if it stands,
will ring the death knoll of the right to contest elections provided by our
Legislature. This factor is designed to be sure sanctions will not have the
effect of discouraging citizens from exercising their constitutional, statutory
or common law rights of access to courts. The trial court’s action has the
precise effect sought to be prevented by proper consideration of this factor.
The ninth Low factor, the impact of the sanction on the offender,
including the offender’s ability to pay a monetary sanction, also weighs
against awarding sanctions. Appellant has very few assets that can be
used to pay sanctions and Appellee offered no evidence of the extent to
which she needs her assets to pay normal living expenses. This Court can
see that what she has and her husband earns is needed to start a business
(the LLC assets), and to live on. There is no evidence she still has any of
Page 61
the $40,000 she raised to pay expenses in this case. The undisputed
evidence is that her costs have greatly exceeded that amount already. 2
Suppl. 68, line 20 through 70, line 16. The $170,000 that belongs to an
independent entity is not hers and could not be subject to seizure to pay
the sanctions. 2 Suppl. RR 67, line 23 – 68, line 13. Here there is no
evidence that she has any of the profit from the sale of her home or how
much of the sales price was profit. 2 Suppl. RR 63, line 14 through 64, line
14. She is no longer making a salary. 2 Suppl. RR 70, lines 11 - 14. Her
husband’s earning capacity is not an asset that can be currently liquidated
to pay sanctions and does make her more able to pay monetary sanctions.
She has basically has $1,000 in assets, $6,000 counting her husband’s
assets. (2 Suppl. RR 65, line 12 to 66, line 19) The $40,000 award is
greatly in access of the assets she has available to pay the sanctions.
Appellee did not identify or prove Appellant’s existing liabilities and
therefore, a full accounting of her net assets could not be assessed by the
Court. Appellee accepted the burden of proving liabilities to show net worth
(2 Suppl. RR 61, lines 7-11) and never did it. (2 Suppl. RR 61 line 1 to 62,
line 19). The focus of this Low factor is to be sure the trial court does not
impose sanctions in an amount absent proof there are current assets of the
person being sanctioned to pay them without bankrupting her. The court
Page 62
did not have enough evidence to ascertain whether or not it was complying
with this Low factor before imposing the sanctions imposed in this case.
The tenth Low factor, the impact of the sanction on the offended
party, including the offended person’s need for compensation, also weighs
against awarding sanctions. There is no evidence of Appellee’s need for
compensation nor that the sanction would have a positive impact on him.
Since it has been made clear that he is not accused of any wrongdoing, he
does not to point to an award of sanctions as evidence of vindication.
The eleventh Low factor, the relative magnitude of sanction
necessary to achieve the goal or goals of the sanction, also weighs against
awarding sanctions. The Texas Civil Practice and Remedies Code Section
10.004 states that the sanction must be limited to what is sufficient to deter
repetition of the conduct or comparable conduct by others similarly
situated. There cannot be any more challenges before the court of appeals
rules so either there will be no more suits because the CVR only practice
violates the election code or everyone will know this is not a winnable
argument and will not go through the unnecessary expense of litigation.
Furthermore, an award of sanctions of $90,000 is manifestly greater than is
necessary to deter the conduct in this case while not chilling future election
contest proceedings. The award of sanctions calculated by attorney’s fees
Page 63
requires that there was no reasonable inquiry made. As discussed above,
Pressley made a reasonable inquiry into the truth of her allegations and
Rogers asserted causes of action based on those facts described by the
election code and several cases holding that mistakes, illegal conduct and
irregularities alone could be relied on by a trial court in calling for a new
election without abusing its discretion. In addition, the amount of sanctions
was manifestly excessive since this case involved responses to written
discovery (erroneously cut off by the court) and two depositions followed by
the granting of summary judgement. It was not a jury trial or even a trial
before the Court. As described above, the magnitude of the sanctions in
this case will chill future candidates from exercising their statutory,
constitutional and common law rights and lawyers from representing them
and clearly not warranted by the actions found by the Court to be
sanctionable.
The twelfth Low factor, burdens on the court system attributable to
the misconduct, weighs against awarding sanctions. There is no evidence
that this no evidence Summary Judgment burdened the Court system any
more than any other election contest. The judge would have to be
appointed and hear the case even if allegations of criminal conduct, voter
Page 64
disenfranchisement and failure to print CVRs on the day of the election
were not issues in this case.
The thirteenth Low factor, the degree to which the offended person’s
own behavior caused the expenses for which recovery is sought, weighs
insignificantly against awarding sanctions. Appellant admits that Appellee
did nothing wrong in the conduct of the election and has never accused him
of any misconduct.
A review of the Low factors that the Court was required to look to as
guiding rules and principals in deciding whether to impose sanctions and if
so how much shows the court abused its discretion in imposing the
sanctions of $90,000 for a case at the point of granting a summary
judgment ($40,000 against Pressley and $50,000 against her lawyer).
Sub Issue 4. DID THE TRIAL COURT ABUSE ITS DISCRETION
BY IMPOSING SANCTIONS BASED ON ATTORNEY’S FEES IN THE
EVENT OF AN UNSUCCESSFUL APPEAL WITHOUT ANY EVIDENCE?
The trial court, in another exhibition of arbitrary and capricious action
and in a total disregard of guiding principles imposed conditional sanctions
on Appellant if she was not successful in pursuing her appeal. Suppl. IV
CR 54 App.3. There was no request for these sanctions and absolutely no
evidence of what would be reasonable necessary attorney’s fees that
would be incurred in the event of appeal.
Page 65
Awarding attorney’s fees without any evidence to support them is a
clear abuse of discretion. Great American Reserve Ins. Co. v. Britton, 406
S.W.2d 901, 907; (Tex. 1966); Lesikar v. Rappeport, 33 S.W.3d 282, 308
(Tex. App.—Texarkana 2000 no pet.) In addition as pointed out above
Appellee would not be pressed to pay any attorney’s fees. Furthermore, a
great portion of the appeal is devoted to the issue of whether a CVR
satisfies the statutory requirement of maintaining an image of the ballot for
which no sanctions were found warranted.
Finally sanctions for filing a frivolous appeal is within the exclusive
jurisdiction of this Court. Texas Rules of Appellate Procedure, Rule 45.
While a trial court may award attorney’s fees for a losing appeal when the
law allows it to award attorney’s fees, (there is no statutory authority for
awarding attorney’s fees in an election contest) a trial court is not vested
with jurisdiction or discretion to award sanctions for appealing its decision.
The trial court in this case therefore abused its discretion in awarding
sanctions measured by attorney’s fees on appeal without any evidence of
that amount or reasonableness thereof and contingent on what happens in
the future with respect to the disposition of an appeal.
Page 66
CONCLUSION
The trial court committed reversible error by granting Appellee’s No
Evidence Motion for Summary Judgment because there was more than a
scintilla of evidence that the clerk counted CVRs instead of and without
images of ballots and that there were mistakes, irregularities, and other
evidence that tended to prove that the true outcome of the election could
not be ascertained. Therefore, this Court should reverse the trial court’s
judgment and remand it to the trial court for trial. The trial court also
committed reversal error in awarding sanctions in the absence of evidence
that sanctionable conduct occurred and in violation of the Low factors and
appellate sanctions measured by attorney’s fees without any evidence.
Therefore, the sanctions order of the court should be reversed and
rendered that Appellee take nothing by his request for sanctions.
PRAYER
Based on the record and the law cited herein, Appellant prays this
honorable Court to reverse the trial courts judgment granting Appellee a
summary judgment and to remand it with instructions to permit requested
discovery of the ESlate manual, and the JBC and to examine the eSlate
program and its functioning in tallying the votes in this election and conduct
further proceedings consistent with the holding that CVRs do not satisfy the
Page 67
statutory requirement of maintaining a ballot image and that the trial court
may void the election if it believes in its discretion that irregularities and
mistakes makes it impossible to ascertain the true outcome of the election
without requiring appellant to identify particular votes that were affected.
Appellant also asks the court to reverse and render that Appellee take
nothing by its Motion for Sanctions.
Respectfully Submitted,
/s/ Mark A. Cohen________________
Mark A. Cohen / SBN: 04508400
805 West 10th Street, Suite 100
Austin, Texas 78701
(512) 474-4424 Telephone
(512) 472-5444 Facsimile
mark@cohenlegalservices.com
ATTORNEY FOR APPELLANT
DR. LAURA PRESSLEY
CERTIFICATE OF COMPLIANCE
This brief complies with the requirements of Texas Rules of Appellate
Procedure 9.4(i)3 for type-volume limitation because this brief contains
14,315 words, excluding the parts of the brief exempted by Texas Rules of
Appellate Procedure 9.4(i)3. This brief complies with the typeface
requirements of Texas Rules of Appellate Procedure 9.4(i)3 because this
brief has been prepared in a proportionally spaced sans serif typeface
using Microsoft Word 2010 in 14 pt. Arial.
/s/ Mark A. Cohen________________
Mark A. Cohen
Attorney for Laura Pressley, Appellant
Dated: September 16, 2015___
Page 68
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and
foregoing has been served by efile and/or facsimile to the following persons
on this 16th day of September, 2015.
Kurt Kuhn
State Bar No. 24002433
KUHN HOBBS PLLC
3307 Northland Drive, # 310
Austin, Texas 78731
(512) 476-6000 Telephone
(512) 476-6002 Facsimile
Kurt@KuhnHobbs.com
Charles 'Chuck' Herring Jr.
State Bar No. 09534100
Herring & Irwin, L.L.P.
1411 West Avenue, Ste 100
Austin, TX 78701
(512) 320-0665 Telephone
(512) 519-7580 Facsimile
cherring@herring-irwin.com
ATTORNEYS FOR APPELLEE GREGORIO “GREG” CASAR
David A. Rogers
State Bar No. 24014089
1201 Spyglass Drive, Suite #100
Austin, Texas 78746
(512) 923-1836 Telephone
(512) 201-4082 Facsimile
Firm@DARogersLaw.com
PRO SE
/s/ Mark A. Cohen________________
Mark A. Cohen
Page 69
APPENDIX
Page 70
APPENDIX TABLE OF CONTENTS
1. Original Final Judgment 5/26/15
2. Amended Summary Judgment Order 6/24/15
3. 7/23/15 Judgment with Sanctions
4. Notice of Accelerated Appeal
5. First Amended Notice of Accelerated Appeal
6. Request for Amended Findings of Fact and Conclusions of Law
7. Order on Request for Amended and Additional Findings
8. Second Amended Notice of Accelerated Appeal
9. Texas Constitution, Art VI. § 4
10. Ch 10 Civil Practice and Remedies Code
11. Texas Election Code § 2.001
12. Texas Election Code § 33.056
13. Texas Election Code § 52.001
14. Texas Election Code § 52.003
15. Texas Election Code § 52.062
16. Texas Election Code § 56.063
17. Texas Election Code § 52.031
18. Texas Election Code § 66.051-054
19. Texas Election Code § 128.001
20. Texas Election Code § 213.016
21. Texas Election Code § 214.049 e
22. Texas Election Code § 221.003
23. Texas Election Code § 221.012
24. Texas Election Code § 221.013
25. Texas Rule of Appellate Procedure 45
26. Texas Rule of Civil Procedure 11
27. Rules of Civil Procedure 192
28. Texas Rules of Civil Procedure 193.4
29. Foust case
30. Texas Election Code § 231.009
31. Texas Election Code § 52.070
Page 71
32. Texas Election Code § 52.064
33. Texas Election Code § 213.013
34. Texas Election Code § 33.061
35. Texas Rules of Civil Procedure 329b
36. Big Version of Tape Attached to Contest
37. Texas Election Code § 52.075
Page 72
NO. D-1-GN-15-000374
LAURA PRESSLEY § IN THE DISTRICT COURT
Contestant §
§
v. § TRAVIS COUNTY, TEXAS
§
GREGORIO''GREG'CASAR §
Contestee § 201 ST JUDICIAL DISTRICT
Amended Summary Judgment Order
The Court has considered Contestee Casal's Amended Motion for Summary
Judgment, Contestee's Supplement to his Amended Motion for Summary Judgment,
Contestee's No-Evidence Motion for Summary Judgment, Contestants Response to
Contestee's Amended and Supplemental Motion for Summary Judgment, the exhibits
cited in those documents, and the parties' arguments, and the Court FINDS and ORDERS
as follows:
1. Casal's No-Evidence Motion for Summary Judgment is GRANTED.
2. Under Texas Election Code § 221.012(a), the Court DECLARES that the true
outcome of the December 16, 2014 runoff election is that Contestee Gregorio "Greg'
Casar was elected to the Austin City Council District.
3. Contestee Casal's motion for sanctions against Contestant Laura Pressley and her
Counsel remains pending before the Court and will be considered and decided by the
Court in a separate order.
4. This Order amends and replaces the Courts prior May 26,2015 Order.
IT SO ORDERED.
SIGNED this the2i-day of_---"'~"'---l/___'tt!?,----'~_,
2015.
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JUib'GE DAN MILLS .
7/10/2015 1:51:39 PM
Velva L. Price
District Clerk
Travis County
D-1-GN-15-000374
Tex. Const. Art. VI, § 4
Sec. 4. Elections By Ballot; Numbering, Fraud, and Purity of
Elections; Registration of Voters.
 In all elections by the people, the vote shall be by ballot, and the Legislature shall provide
for the numbering of tickets and make such other regulations as may be necessary to
detect and punish fraud and preserve the purity of the ballot box; and the Legislature shall
provide by law for the registration of all voters.
CIVIL PRACTICE AND REMEDIES CODE
TITLE 2. TRIAL, JUDGMENT, AND APPEAL
SUBTITLE A. GENERAL PROVISIONS
CHAPTER 10. SANCTIONS FOR FRIVOLOUS PLEADINGS AND MOTIONS
Sec. 10.001. SIGNING OF PLEADINGS AND MOTIONS. The
signing of a pleading or motion as required by the Texas Rules
of Civil Procedure constitutes a certificate by the signatory
that to the signatory's best knowledge, information, and belief,
formed after reasonable inquiry:
(1) the pleading or motion is not being presented for
any improper purpose, including to harass or to cause
unnecessary delay or needless increase in the cost of
litigation;
(2) each claim, defense, or other legal contention in
the pleading or motion is warranted by existing law or by a
nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law;
(3) each allegation or other factual contention in
the pleading or motion has evidentiary support or, for a
specifically identified allegation or factual contention, is
likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) each denial in the pleading or motion of a
factual contention is warranted on the evidence or, for a
specifically identified denial, is reasonably based on a lack of
information or belief.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1,
1995.
Sec. 10.002. MOTION FOR SANCTIONS. (a) A party may make
a motion for sanctions, describing the specific conduct
violating Section 10.001.
(b) The court on its own initiative may enter an order
describing the specific conduct that appears to violate Section
10.001 and direct the alleged violator to show cause why the
conduct has not violated that section.
(c) The court may award to a party prevailing on a motion
under this section the reasonable expenses and attorney's fees
incurred in presenting or opposing the motion, and if no due
diligence is shown the court may award to the prevailing party
all costs for inconvenience, harassment, and out-of-pocket
expenses incurred or caused by the subject litigation.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1,
1995.
Sec. 10.003. NOTICE AND OPPORTUNITY TO RESPOND. The court
shall provide a party who is the subject of a motion for
sanctions under Section 10.002 notice of the allegations and a
reasonable opportunity to respond to the allegations.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1,
1995.
Sec. 10.004. VIOLATION; SANCTION. (a) A court that
determines that a person has signed a pleading or motion in
violation of Section 10.001 may impose a sanction on the person,
a party represented by the person, or both.
(b) The sanction must be limited to what is sufficient to
deter repetition of the conduct or comparable conduct by others
similarly situated.
(c) A sanction may include any of the following:
(1) a directive to the violator to perform, or
refrain from performing, an act;
(2) an order to pay a penalty into court; and
(3) an order to pay to the other party the amount of
the reasonable expenses incurred by the other party because of
the filing of the pleading or motion, including reasonable
attorney's fees.
(d) The court may not award monetary sanctions against a
represented party for a violation of Section 10.001(2).
(e) The court may not award monetary sanctions on its own
initiative unless the court issues its order to show cause
before a voluntary dismissal or settlement of the claims made by
or against the party or the party's attorney who is to be
sanctioned.
(f) The filing of a general denial under Rule 92, Texas
Rules of Civil Procedure, shall not be deemed a violation of
this chapter.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1,
1995.
Sec. 10.005. ORDER. A court shall describe in an order
imposing a sanction under this chapter the conduct the court has
determined violated Section 10.001 and explain the basis for the
sanction imposed.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1,
1995.
Sec. 10.006. CONFLICT. Notwithstanding Section 22.004,
Government Code, the supreme court may not amend or adopt rules
in conflict with this chapter.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1,
1995.
ELECTION CODE
TITLE 1. INTRODUCTORY PROVISIONS
CHAPTER 2. VOTE REQUIRED FOR ELECTION TO OFFICE
SUBCHAPTER A. ELECTION BY PLURALITY
Sec. 2.001. PLURALITY VOTE REQUIRED. Except as otherwise
provided by law, to be elected to a public office, a candidate
must receive more votes than any other candidate for the office.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Sec. 33.056. Observing Activity Generally.
 (a) Except as provided by Section 33.057, a watcher is entitled to observe any activity
conducted at the location at which the watcher is serving. A watcher is entitled to sit or stand
conveniently near the election officers conducting the observed activity.
 (b) A watcher is entitled to sit or stand near enough to the member of a counting team who
is announcing the votes to verify that the ballots are read correctly or to a member who is
tallying the votes to verify that they are tallied correctly.
 (c) A watcher is entitled to inspect the returns and other records prepared by the election
officers at the location at which the watcher is serving.
 (d) A watcher may not be prohibited from making written notes while on duty. Before
permitting a watcher who made written notes at a precinct polling place to leave while the
polls are open, the presiding officer may require the watcher to leave the notes with another
person on duty at the polling place, selected by the watcher, for retention until the watcher
returns to duty.
History
Enacted by Acts 1985, 69th Leg., ch. 211 (S.B. 616), § 1, effective January 1, 1986.
Sec. 52.001. OFFICIAL BALLOT. (a) Except as provided by
Subsection (b), the vote in an election is by official ballot.
(b) If an official ballot is unavailable at a polling
place, the presiding election judge shall provide a ballot
designed in accordance with this chapter.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Election Code Sec. 52.003. PLACING CANDIDATE'S NAME ON
BALLOT. (a) Except as otherwise provided by law, the authority
responsible for having the official ballot prepared shall have
placed on the ballot the name of each candidate:
(1) who has filed with the authority an application
for a place on the ballot that complies with the requirements as
to form, content, and procedure that the application must
satisfy for the candidate's name to be placed on the ballot; or
(2) whose entitlement to placement on the ballot has
been lawfully certified to the authority.
(b) A candidate's name shall be placed on the ballot in
the form indicated on the candidate's application or, if the
application was not filed with the authority, in the form
certified to the authority.
(c) Except as otherwise provided by law, in a runoff
election, the authority shall have placed on the ballot the name
of each candidate who is entitled to a place on the runoff
ballot as indicated by the canvass for the main election.
Sec. 52.062. NUMBERING OF BALLOTS. The ballots prepared
by each authority responsible for having the official ballot
prepared shall be numbered consecutively beginning with the
number "1."
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Texas Election Code Sec. 52.063. DESIGNATION OF ELECTION
AND DATE. A designation of the nature of the election and the
date of the election shall be printed at the top of the ballot.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Texas Election code Sec. 52.031. FORM OF NAME ON BALLOT. (a) A
candidate's name shall be printed on the ballot with the given name or initials first,
followed by a nickname, if any, followed by the surname, in accordance with this
section
Election code sections 66.051 to .054
Sec. 66.051. DISTRIBUTION OF ELECTION RECORDS. (a) The
presiding judge shall deliver envelope no. 1 in person to the
presiding officer of the local canvassing authority. If the
presiding officer of the local canvassing authority is
unavailable, the envelope shall be delivered to the general
custodian of election records who shall then deliver it to the
local canvassing authority before the time set for convening the
local canvass.
(b) The presiding judge shall deliver envelope no. 2,
ballot box no. 3, and ballot box no. 4 and its key in person to
the general custodian of election records.
(c) The presiding judge shall retain envelope no. 3.
(d) The presiding judge shall deliver envelope no. 4 in
person to the voter registrar. If the voter registrar is
unavailable, the envelope shall be delivered to the general
custodian of election records, who shall deliver it to the voter
registrar on the next regular business day.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Amended by Acts 1987, 70th Leg., ch. 54, Sec. 12(b), eff. Sept.
1, 1987; Acts 1993, 73rd Leg., ch. 728, Sec. 21, eff. Sept. 1,
1993; Acts 1997, 75th Leg., ch. 1078, Sec. 17, eff. Sept. 1,
1997; Acts 2003, 78th Leg., ch. 1315, Sec. 39, eff. Jan. 1,
2004.
Sec. 66.052. DELIVERY BY ELECTION CLERK. A delivery of
election records or supplies that is to be performed by the
presiding judge may be performed by an election clerk designated
by the presiding judge.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Sec. 66.053. TIME FOR DELIVERING ELECTION RECORDS. (a)
The precinct election records shall be delivered to the
appropriate authorities immediately after the precinct returns
are completed.
(b) If the presiding judge determines that the ballots
will not be counted in time to allow delivery of the precinct
election records by 2 a.m. of the day after election day, the
presiding judge, between midnight of election day and 1 a.m. of
the following day, shall notify the general custodian of
election records by telephone of:
(1) the total number of voters who voted at the
polling place as indicated by the poll list;
(2) the vote totals tallied for each candidate and
for and against each measure at the time of notification; and
(3) the expected time of finishing the count.
(c) The precinct election records shall be delivered not
later than 24 hours after the polls close in each election.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Sec. 66.054. FAILURE TO DELIVER ELECTION RETURNS AND VOTED
BALLOTS. (a) An election officer responsible for delivering
precinct election returns or voted ballots commits an offense if
the officer:
(1) fails to make the delivery to the appropriate
authority;
(2) fails to make the delivery by the deadline
prescribed by Section 66.053(c); or
(3) fails to prevent another person from handling in
an unauthorized manner the returns or voted ballots that the
officer is responsible for delivering while they are in the
officer's custody.
(b) If the officer is an election clerk, it is an
exception to the application of Subsection (a)(2) that the
election clerk did not receive the returns from the presiding
judge in time to permit a timely delivery.
(c) An offense under this section is a Class B
misdemeanor.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Tex. Elec. Code § 128.001
Sec. 128.001. Computerized Voting System Standards.
 (a) The secretary of state shall prescribe procedures to allow for the use of a
computerized voting system. The procedures must provide for the use of a computerized
voting system with:
o (1) multiple voting terminals for the input of vote selections on the ballot
presented by a main computer; and
o (2) a main computer to coordinate ballot presentation, vote selection, ballot
image storage, and result tabulation.
 (b) Notwithstanding Chapter 66, a system under this section may allow for the storage of
processed ballot materials in an electronic form on the main computer.
 (c) The secretary of state may modify existing procedures as necessary to allow the use
of a system authorized by this chapter.
History
Enacted by Acts 1997, 75th Leg., ch. 1349 (H.B. 331), § 50, effective September 1, 1997.
Texas Election Code Sec. 213.016. PRINTING IMAGES OF
BALLOTS CAST USING DIRECT RECORDING ELECTRONIC VOTING MACHINES.
During any printing of images of ballots cast using direct
recording electronic voting machines for the purpose of a
recount, the full recount committee is not required to be
present. The recount committee chair shall determine how many
committee members must be present during the printing of the
images. Each candidate is entitled to be present and to have
representatives present during the printing of the images in the
same number as Section 213.013(b) prescribes for watchers for a
recount.
Texas Election Code Sec. 214.049. COUNTING PROCEDURE.
(e) If electronic voting system ballots are to be
recounted manually, the original ballot, rather than the
duplicate of the original ballot, shall be counted.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Amended by Acts 1987, 70th Leg., 2nd C.S., ch. 59, Sec. 19, eff.
Oct. 20, 1987; Acts 1997, 75th Leg., ch. 864, Sec. 225, eff.
Sept. 1, 1997; Acts 2001, 77th Leg., ch. 851, Sec. 8, eff.
Sept. 1, 2001.
Tex. Elec. Code § 221.003
Sec. 221.003. Scope of Inquiry.
 (a) The tribunal hearing an election contest shall attempt to ascertain whether the
outcome of the contested election, as shown by the final canvass, is not the true outcome
because:
o (1) illegal votes were counted; or
o (2) an election officer or other person officially involved in the administration of
the election:
 (A) prevented eligible voters from voting;
 (B) failed to count legal votes; or
 (C) engaged in other fraud or illegal conduct or made a mistake.
 (b) In this title, “illegal vote” means a vote that is not legally countable.
 (c) This section does not limit a provision of this code or another statute expanding the
scope of inquiry in an election contest.
History
Enacted by Acts 1985, 69th Leg., ch. 211 (S.B. 616), § 1, effective January 1, 1986.
Annotations
Notes
LexisNexis ® Notes
STATUTORY NOTES
Revisor’s Notes.
The revised law clarifies the scope of inquiry of a tribunal hearing an election contest, provides a
definition of “illegal vote,” and provides that the scope of inquiry in an election contest is not
limited by this section.
Case Notes
Civil Procedure: Judicial Officers: Judges: Discretion
Civil Procedure: Appeals: Standards of Review: Abuse of Discretion
Evidence: Procedural Considerations: Burdens of Proof: Clear & Convincing Proof
Evidence: Testimony: Experts: Credibility: General Overview
Governments: Legislation: Initiative & Referendum
Governments: Local Governments: Elections
Governments: State & Territorial Governments: Elections
Case Notes
 Civil Procedure: Judicial Officers: Judges: Discretion
 Civil Procedure: Appeals: Standards of Review: Abuse of Discretion
 Evidence: Procedural Considerations: Burdens of Proof: Clear & Convincing Proof
 Evidence: Testimony: Experts: Credibility: General Overview
 Governments: Legislation: Initiative & Referendum
 Governments: Local Governments: Elections
 Governments: State & Territorial Governments: Elections
Civil Procedure: Judicial Officers: Judges: Discretion
1. If a sufficient number of voters are rendered potentially ineligible by mistakes made during the
recording process to account for the entire margin of victory, a trial court is within its discretion
to declare an election void because it is impossible to determine the true outcome of the election.
Gonzalez v. Villarreal, 251 S.W.3d 763, 2008 Tex. App. LEXIS 921 (Tex. App. Corpus Christi
2008)pet. dism’d w.o.j.No. 08-0132, 2008 Tex. LEXIS 194 (Tex. Mar. 4, 2008), reh'g denied,
No. 13-07-704-CV, 2008 Tex. App. LEXIS 4339 (Tex. App. Corpus Christi Mar. 24, 2008, no
pet.).
Civil Procedure: Appeals: Standards of Review: Abuse of Discretion
2. In a case where a contestee won an election by three votes, a trial court did not abuse its
discretion by declaring an election void under Tex. Elec. Code Ann. § 221.012 where seven
voters testified that they were precluded from voting in a county commissioner’s race due to
their being assigned to the incorrect precinct. McCurry v. Lewis, 259 S.W.3d 369, 2008 Tex.
App. LEXIS 5029 (Tex. App. Amarillo 2008, no pet.).
Evidence: Procedural Considerations: Burdens of Proof: Clear & Convincing Proof
3. Where a trial court was presented with clear and convincing evidence that illegal votes were
counted in an election for places on the board of trustees for an independent school district, that
officials failed to count some legal votes, and that election judges made mistakes that materially
affected and obscured the true outcome of the election, the trial court properly declared the
election void and ordered a new election; legally sufficient evidence supported the trial court’s
implied findings that 77 votes were illegally cast and that, with respect to 436 voters, mistakes by
election clerks in failing to record information required by the election code made it impossible
to determine whether those votes were legally cast and countable because, among the undisputed
testimony presented by an election contestant was that: (1) 72 voters listed on the combination
forms were registered voters but, according to the online database, did not reside in the school
district at issue; (2) five voters voted in the wrong precinct; (3) with respect to 127 voters who
cast their votes on election day, the names or registration certificate numbers could not be
located on the list of registered voters, either because the name did not appear on the list at all or
because there were multiple, identical names on the list that might or might not have been the
voter, making it impossible to tell if those votes were legally cast; (4) four voters on election day
voted, but provided an incorrect voter registration number, and no address was provided, making
it impossible to tell if those voters were qualified and properly accepted for voting, or whether
they had been required to cast a provisional ballot; and (5) with respect to voting during early
voting, because there was a lack of an address on the combination forms and the inability to
match a particular voter with a particular listing on the online database, the contestant could not
determine the eligibility of 208 voters from one polling place and 97 voters at another polling
place. Gonzalez v. Villarreal, 251 S.W.3d 763, 2008 Tex. App. LEXIS 921 (Tex. App. Corpus
Christi 2008)pet. dism’d w.o.j.No. 08-0132, 2008 Tex. LEXIS 194 (Tex. Mar. 4, 2008), reh'g
denied, No. 13-07-704-CV, 2008 Tex. App. LEXIS 4339 (Tex. App. Corpus Christi Mar. 24,
2008, no pet.).
Evidence: Testimony: Experts: Credibility: General Overview
4. In an election contest under Tex. Elec. Code Ann. § 221.003(a), a trial court was not required
to accept the opinion of an expert concerning the unreliability of electronic voting devices where
he admitted that he had not examined or tested any machines used in the county; his conclusions
were unsupported by any analysis or reasoning, and a county elections administrator testified to
the contrary by pointing to the fact that signature rosters almost perfectly matched the number of
paper votes. The trial court found that the election day count was valid; even if a court-
supervised recount was accurate, the benefit to the incumbent was insufficient to affect the
outcome of the election. Flores v. Cuellar, 269 S.W.3d 657, 2008 Tex. App. LEXIS 6610 (Tex.
App. San Antonio 2008, no pet.)
Governments: Legislation: Initiative & Referendum
5. Statements by the mayor, cited as newly discovered evidence in a motion for new trial, were
immaterial to the scope of inquiry in an election contest because the statements did not address
matters discussed in either the measure or the proposition and consequently did not bear on the
question of whether voters were misled by the proposition. Dacus v. Parker, 383 S.W.3d 557,
2012 Tex. App. LEXIS 5420 (Tex. App. Houston 14th Dist. 2012, no pet. h.)
Governments: Local Governments: Elections
6. Court properly granted summary judgment in favor of appellee, because appellant indicated
that he had no evidence that anybody failed to count legal votes and no evidence to prove the
election results were wrong or that the voting machines were not working, and testified he had
no evidence of any illegal votes. Vazaldua v. Muoz, — S.W.3d —, 2014 Tex. App. LEXIS 6701
(June 20, 2014, no pet. h.)
7. Statements by the mayor, cited as newly discovered evidence in a motion for new trial, were
immaterial to the scope of inquiry in an election contest because the statements did not address
matters discussed in either the measure or the proposition and consequently did not bear on the
question of whether voters were misled by the proposition. Dacus v. Parker, 383 S.W.3d 557,
2012 Tex. App. LEXIS 5420 (Tex. App. Houston 14th Dist. 2012, no pet. h.)
8. Given that the parties utilized the trial court to resolve an issue of disputed fact and appellants
had a right to the court’s review to determine whether the trial court properly exercised its
discretion in resolving the issues in this election contest, the court declined to issue sanctions.
McDuffee v. Miller, 327 S.W.3d 808, 2010 Tex. App. LEXIS 8676 (Tex. App. Beaumont 2010,
no pet.).
9. Clearly, the Legislature contemplated the use of election contest proceedings to resolve
disputes concerning whether votes were countable. McDuffee v. Miller, 327 S.W.3d 808, 2010
Tex. App. LEXIS 8676 (Tex. App. Beaumont 2010, no pet.).
10. Legislature gave district courts a significant role in election contest proceedings, given that in
an election contest, the district court determines whether the canvassed result includes illegal
votes, under Tex. Elec. Code Ann. § 221.003, and the trial court is expressly authorized to
subtract illegal votes from the official total for the candidate, under Tex. Elec. Code Ann. §
221.011; thus, it does not appear that the Legislature intended the registrar’s role of hearing
complaints about the validity of a voter’s registration to be the exclusive method of assuring the
accuracy of elections. McDuffee v. Miller, 327 S.W.3d 808, 2010 Tex. App. LEXIS 8676 (Tex.
App. Beaumont 2010, no pet.).
11. Because the incumbent directors prevailed in the trial court, on appeal the court reviewed the
evidence in the light most favorable to the judgment and determined if the trier-of-fact could
have formed a firm belief that the residences of the voters casting the challenged votes were not
within the right district on the date they signed a voter’s registration application, nor when they
voted, nor subsequently. McDuffee v. Miller, 327 S.W.3d 808, 2010 Tex. App. LEXIS 8676
(Tex. App. Beaumont 2010, no pet.).
12. Trial court erred in awarding summary judgment to a mayor in a city resident’s action
challenging a special election in which three proposed city charter amendments were passed
because the expert testimony offered by the resident raised a genuine issue of material fact
regarding whether irregularities in the conduct of the election rendered it impossible to determine
the majority of the voters’ true will under Tex. Elec. Code Ann. § 221.003(a). Duncan-Hubert v.
Mitchell, 310 S.W.3d 92, 2010 Tex. App. LEXIS 1889 (Tex. App. Dallas 2010)pet. deniedNo.
10-0493, 2010 Tex. LEXIS 729 (Tex. Oct. 1, 2010).
13. Challenge that does not concern whether the outcome of the election was incorrect for one of
the four reasons listed in the statute is, by definition, not an election contest under Tex. Elec.
Code Ann. § 221.003. City of Granite Shoals v. Winder, 280 S.W.3d 550, 2009 Tex. App.
LEXIS 1925 (Tex. App. Austin 2009)pet. deniedNo. 09-0368, 2010 Tex. LEXIS 152 (Tex. Feb.
12, 2010).
14. Because property owners’ suit for declaratory judgment did not raise any of the issues that
had to be resolved in an election contest, they were not required to bring their challenge as an
election contest under Tex. Elec. Code Ann. § 221.003. City of Granite Shoals v. Winder, 280
S.W.3d 550, 2009 Tex. App. LEXIS 1925 (Tex. App. Austin 2009)pet. deniedNo. 09-0368, 2010
Tex. LEXIS 152 (Tex. Feb. 12, 2010).
15. In an election contest under Tex. Elec. Code Ann. § 221.003(a), a trial court was not
required to accept the opinion of an expert concerning the unreliability of electronic voting
devices where he admitted that he had not examined or tested any machines used in the county;
his conclusions were unsupported by any analysis or reasoning, and a county elections
administrator testified to the contrary by pointing to the fact that signature rosters almost
perfectly matched the number of paper votes. The trial court found that the election day count
was valid; even if a court-supervised recount was accurate, the benefit to the incumbent was
insufficient to affect the outcome of the election. Flores v. Cuellar, 269 S.W.3d 657, 2008 Tex.
App. LEXIS 6610 (Tex. App. San Antonio 2008, no pet.)
16. Election was properly declared void where two voters testified that they were prevented from
voting in a county commissioner race due to their placement in an improper voting precinct; the
voters’ testimony did not amount to impeachment, the fact that the voters were able to cast a
ballot did not preclude a finding that they were prevented from voting, and they had no
correction duty under Tex. Elec. Code Ann. § 15.021(a). The trial court was unable to determine
the true outcome of the election under Tex. Elec. Code Ann. § 221.012. Perez v. Alanis, No. 04-
08-00276-CV, 2008 Tex. App. LEXIS 6127 (Tex. App. San Antonio Aug. 13, 2008, no pet.).
17. In a case where a contestee won an election by three votes, a trial court did not abuse its
discretion by declaring an election void under Tex. Elec. Code Ann. § 221.012 where seven
voters testified that they were precluded from voting in a county commissioner’s race due to
their being assigned to the incorrect precinct. McCurry v. Lewis, 259 S.W.3d 369, 2008 Tex.
App. LEXIS 5029 (Tex. App. Amarillo 2008, no pet.).
18. If a sufficient number of voters are rendered potentially ineligible by mistakes made during
the recording process to account for the entire margin of victory, a trial court is within its
discretion to declare an election void because it is impossible to determine the true outcome of
the election. Gonzalez v. Villarreal, 251 S.W.3d 763, 2008 Tex. App. LEXIS 921 (Tex. App.
Corpus Christi 2008)pet. dism’d w.o.j.No. 08-0132, 2008 Tex. LEXIS 194 (Tex. Mar. 4, 2008),
reh'g denied, No. 13-07-704-CV, 2008 Tex. App. LEXIS 4339 (Tex. App. Corpus Christi Mar.
24, 2008, no pet.).
19. Where a trial court was presented with clear and convincing evidence that illegal votes were
counted in an election for places on the board of trustees for an independent school district, that
officials failed to count some legal votes, and that election judges made mistakes that materially
affected and obscured the true outcome of the election, the trial court properly declared the
election void and ordered a new election; legally sufficient evidence supported the trial court’s
implied findings that 77 votes were illegally cast and that, with respect to 436 voters, mistakes by
election clerks in failing to record information required by the election code made it impossible
to determine whether those votes were legally cast and countable because, among the undisputed
testimony presented by an election contestant was that: (1) 72 voters listed on the combination
forms were registered voters but, according to the online database, did not reside in the school
district at issue; (2) five voters voted in the wrong precinct; (3) with respect to 127 voters who
cast their votes on election day, the names or registration certificate numbers could not be
located on the list of registered voters, either because the name did not appear on the list at all or
because there were multiple, identical names on the list that might or might not have been the
voter, making it impossible to tell if those votes were legally cast; (4) four voters on election day
voted, but provided an incorrect voter registration number, and no address was provided, making
it impossible to tell if those voters were qualified and properly accepted for voting, or whether
they had been required to cast a provisional ballot; and (5) with respect to voting during early
voting, because there was a lack of an address on the combination forms and the inability to
match a particular voter with a particular listing on the online database, the contestant could not
determine the eligibility of 208 voters from one polling place and 97 voters at another polling
place. Gonzalez v. Villarreal, 251 S.W.3d 763, 2008 Tex. App. LEXIS 921 (Tex. App. Corpus
Christi 2008)pet. dism’d w.o.j.No. 08-0132, 2008 Tex. LEXIS 194 (Tex. Mar. 4, 2008), reh'g
denied, No. 13-07-704-CV, 2008 Tex. App. LEXIS 4339 (Tex. App. Corpus Christi Mar. 24,
2008, no pet.).
20. Origin of the requirement that the plaintiff in an election contest prove the allegations by
clear and convincing evidence is not clear to the court, as the court finds no such requirement in
the applicable part of the Texas Election Code for purposes of Tex. Elec. Code Ann. § 221.003;
the earliest case imposing the burden is Johnston v. Peters and it thus appears to be a judge-made
rule, but the court followed the majority of election-contest cases in reviewing this appeal under
the higher standard. Willet v. Cole, 249 S.W.3d 585, 2008 Tex. App. LEXIS 514 (Tex. App.
Waco 2008, no pet.).
21. Appellee had the burden to prove by clear and convincing evidence that challenged voters
did not reside, as defined in Tex. Elec. Code Ann. § 1.015, at a vet clinic, thus making them
ineligible to vote under Tex. Elec. Code Ann. § 11.001(a)(1)-(3); because the evidence was
sufficient to produce a belief that the voters did not reside at the clinic, given witness testimony
that the voters did not live, reside, sleep, or stay at the clinic and the evidence that their residence
was outside the city, the trial court did not err in overturning the election under Tex. Elec. Code
Ann. § 221.003. Willet v. Cole, 249 S.W.3d 585, 2008 Tex. App. LEXIS 514 (Tex. App. Waco
2008, no pet.).
22. Appellee’s motion to issue a mandate immediately was granted, good cause having been
shown, and the clerk was directed to issue the mandate at the same time as the judgment
affirming the trial court’s overturning of an election under Tex. Elec. Code Ann. § 221.003, for
purposes of Tex. R. App. P. 18. Willet v. Cole, 249 S.W.3d 585, 2008 Tex. App. LEXIS 514
(Tex. App. Waco 2008, no pet.).
23. Because some people who were deeded land by an election contestee did not meet the
residency requirements under Tex. Elec. Code Ann. § 1.015(a), a trial court did not err by
finding that their votes were illegally counted under Tex. Elec. Code Ann. § 221.003(a)(1) and
ordering a new county commissioner election; a ranch hand who stayed in different places at
night, a student attending school in another town, and a person that merely visited the county in
question were not found to be residents, even though two of them owned land there; however,
three others who stayed in a mobile home on property in the county were properly found to be
residents. Kiehne v. Jones, 247 S.W.3d 259, 2007 Tex. App. LEXIS 4869 (Tex. App. El Paso
2007)pet. deniedNo. 07-0607, 2007 Tex. LEXIS 855 (Tex. Sept. 14, 2007).
24. Trial court properly refused to include in a final election tally three ballots in appellant’s
favor that had been excluded based on ballot application and carrier envelope signatures that did
not match; the ballot board acted properly in comparing the signatures on the ballot applications
and carrier envelopes to determine whether they were signed by the same person. Harrison v.
Stanley, 193 S.W.3d 581, 2006 Tex. App. LEXIS 1906 (Tex. App. Houston 1st Dist. 2006), reh'g
denied, 193 S.W.3d 581, 2006 Tex. App. LEXIS 4119 (Tex. App. Houston 1st Dist. 2006, no
pet.)pet. deniedNo. 06-0517, 2006 Tex. LEXIS 814 (Tex. Aug. 31, 2006).
25. Location of temporary polling places for a school district’s special bond election, which
included a football stadium during a high school football game, was not improper under Tex.
Elec. Code Ann. § 221.003; the school district had authority to establish temporary polling
places pursuant to Tex. Elec. Code Ann. § 85.062(a)(2). Bielamowicz v. Cedar Hill Indep. Sch.
Dist., 136 S.W.3d 718, 2004 Tex. App. LEXIS 4645 (Tex. App. Dallas 2004)pet. deniedNo. 04-
0768, 2004 Tex. LEXIS 947 (Tex. Oct. 8, 2004).
26. Complaints alleging that city officials prevented eligible voters from voting or that city
officials, by failing to publish or republish an ordinance, engaged in fraud or illegal conduct were
all grounds within the scope of an election contest review as defined by Tex. Elec. Code §
221.003. Rossano v. Townsend, 9 S.W.3d 357, 1999 Tex. App. LEXIS 8971 (Tex. App. Houston
14th Dist. 1999, no pet.).
27. Although election officials combined the locations of certain polling places, leaving some
precincts without a polling location in violation of Tex. Elec. Code Ann. § 43.001, the violations
were not sufficient to invalidate the results of the election pursuant to Tex. Elec. Code Ann. §
221.003 as there was no testimony offered regarding any eligible voters who were prevented
from voting nor were there any allegations that any election official engaged in illegal conduct or
of other election irregularities. Honts v. Shaw, 975 S.W.2d 816, 1998 Tex. App. LEXIS 5666
(Tex. App. Austin 1998).
28. Although Tex. Elec. Code Ann. § 221.003(a)(2)(C) does not define the term “mistake,” the
nature of the mistake contemplated by the statute must be one of such magnitude as to affect the
true outcome of the election. Honts v. Shaw, 975 S.W.2d 816, 1998 Tex. App. LEXIS 5666
(Tex. App. Austin 1998).
29. Judgment in an election contestant’s action was proper where there was no evidence that the
contestees committed election fraud or that there were a sufficient number of illegal votes cast
that would have changed the election’s outcome. Frias v. Board of Trustees, 584 S.W.2d 944,
1979 Tex. App. LEXIS 3969 (Tex. Civ. App. El Paso), cert. denied, 444 U.S. 996, 100 S. Ct.
531, 62 L. Ed. 2d 426, 1979 U.S. LEXIS 4141 (U.S. 1979).
30. Write-in candidate’s suit contesting a school board trustee election failed where no evidence
was introduced that there was any voting irregularity, that any voter was denied the right to vote,
nor that any voter would have voted differently had write-in candidate’s name appeared on the
ballot, so there was no evidence to show that the results of the election would have been
materially changed. Perez v. Alarcon, 491 S.W.2d 688, 1973 Tex. App. LEXIS 2559 (Tex. Civ.
App. El Paso 1973, no writ).
31. The burden was on the contestant in an election contest to allege and prove either that a
different result would have been reached by counting or not counting certain specified votes, or
that irregularities in the conduct of an election were such as to render it impossible to determine
the will of the majority of the voters participating. Ware v. Crystal City Independent School
Dist., 489 S.W.2d 190, 1972 Tex. App. LEXIS 2379 (Tex. Civ. App. San Antonio 1972, no
writ).
Governments: State & Territorial Governments: Elections
32. Court properly granted summary judgment in favor of appellee, because appellant indicated
that he had no evidence that anybody failed to count legal votes and no evidence to prove the
election results were wrong or that the voting machines were not working, and testified he had
no evidence of any illegal votes. Vazaldua v. Muoz, — S.W.3d —, 2014 Tex. App. LEXIS 6701
(June 20, 2014, no pet. h.)
33. Individual did not follow the necessary procedures under Tex. Elec. Code Ann. § /Aa84.032
to cancel her mailed-in ballot, and thus the trial court did not err in finding that the individual
was not eligible to vote in a runoff. Woods v. Legg, 363 S.W.3d 710, 2011 Tex. App. LEXIS
6281 (Tex. App. Houston 1st Dist. 2011, no pet. h.)
34. Individual was improperly placed in district two and forwarded such a mail-in ballot instead
of a district one ballot; the record did not indicate whether the individual was aware of the
problem or whether she intended to vote for a certain candidate, and the trial court did not err in
finding that the board member did not show that the individual was prevented from voting for the
candidate of her choice. Woods v. Legg, 363 S.W.3d 710, 2011 Tex. App. LEXIS 6281 (Tex.
App. Houston 1st Dist. 2011, no pet. h.)
35. Individual had lived in housing with district one, but he could not return home after a
hurricane; at trial, he was living in district two, and the trial court did not err in finding that the
individual was not eligible to vote in district one at the time of the runoff election. Woods v.
Legg, 363 S.W.3d 710, 2011 Tex. App. LEXIS 6281 (Tex. App. Houston 1st Dist. 2011, no pet.
h.)
36. Tex. Elec. Code Ann. § 15.021(a) requires the voter to ensure that accurate registration
information is provided, and the application for registration requires either the applicant’s state-
issued identification number or the last four digits of her social security number; an individual’s
application contained neither, and the evidence supported the finding that she was ineligible to
vote at the runoff election. Woods v. Legg, 363 S.W.3d 710, 2011 Tex. App. LEXIS 6281 (Tex.
App. Houston 1st Dist. 2011, no pet. h.)
37. Individual was told she could not vote because she lived in Houston, and the trial court did
not err in finding that she was not an eligible voter on the runoff election date. Woods v. Legg,
363 S.W.3d 710, 2011 Tex. App. LEXIS 6281 (Tex. App. Houston 1st Dist. 2011, no pet. h.)
38. Evidence did not show whether an individual mailed in her ballot timely, and the individual’s
mother testified that the individual was not allowed to vote, and the evidence did not support the
board member’s burden under Tex. Elec. Code Ann. § 221.003. Woods v. Legg, 363 S.W.3d
710, 2011 Tex. App. LEXIS 6281 (Tex. App. Houston 1st Dist. 2011, no pet. h.)
39. Individual was not allowed to vote in a district one runoff election because her new address
was in district six; she wanted to remain in her rented house in district one, but she had no
definite plans to return to that district, and the trial court did not err in finding that the evidence
did not show that she was a qualified registered voter. Woods v. Legg, 363 S.W.3d 710, 2011
Tex. App. LEXIS 6281 (Tex. App. Houston 1st Dist. 2011, no pet. h.)
40. Evidence supported the conclusion that individuals were not statutorily eligible to vote in
district one at the time of the runoff election, nor did the record show their intent to vote in the
election or any denial of the intent to vote. Woods v. Legg, 363 S.W.3d 710, 2011 Tex. App.
LEXIS 6281 (Tex. App. Houston 1st Dist. 2011, no pet. h.)
41. Evidence supported the finding that a person was not an eligible voter because she was not a
resident of a certain district at the time of the runoff election and she did not show a present
intent to return to that district, for purposes of Tex. Elec. Code Ann. § 1.015. Woods v. Legg,
363 S.W.3d 710, 2011 Tex. App. LEXIS 6281 (Tex. App. Houston 1st Dist. 2011, no pet. h.)
42. Council member argued that the trial court erred in failing to credit evidence to show that the
outcome was not correct because of mistakes in assigning certain voters in one precinct to
another precinct, for purposes of Tex. Elec. Code Ann. § 221.003(a)(2)(C), but the record did
not contain testimony from any of these voters, and the trial court did not err in finding that the
evidence did not rise to the level of clear proof that any voter was deprived of a vote for the
candidate of his choice. Woods v. Legg, 363 S.W.3d 710, 2011 Tex. App. LEXIS 6281 (Tex.
App. Houston 1st Dist. 2011, no pet. h.)
43. Individual admitted that she decided not to complete the registration card and she had no
reason to believe that, had she done so, she would not have been given a provisional ballot; the
trial court did not err in finding that a council member failed to present clear evidence that an
election worker wrongfully denied the individual a chance to vote in a runoff. Woods v. Legg,
363 S.W.3d 710, 2011 Tex. App. LEXIS 6281 (Tex. App. Houston 1st Dist. 2011, no pet. h.)
Research References & Practice Aids
LexisNexis ® Notes
LAW REVIEWS
1. 28 Tex. Tech L. Rev. 1095, ARTICLE: CONSIDERATION OF ILLEGAL VOTES IN
LEGISLATIVE ELECTION CONTESTS, 1997.
Hierarchy Notes:
Tex. Elec. Code Title 14, Subtit. A, Ch. 221
Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2015 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.
Tex. Elec. Code § 221.012
Sec. 221.012. Tribunal’s Action on Contest.
 (a) If the tribunal hearing an election contest can ascertain the true outcome of the
election, the tribunal shall declare the outcome.
 (b) The tribunal shall declare the election void if it cannot ascertain the true outcome of
the election.
History
Enacted by Acts 1985, 69th Leg., ch. 211 (S.B. 616), § 1, effective January 1, 1986.
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Tex. Elec. Code § 213.013
This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch.
2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3),
S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4).
Sec. 213.013. Representation of Parties and Political Parties at Recount.
 (a) Each person entitled to notice of the recount under Section 213.009 is entitled to be
present at a recount.
 (b) In a recount of an election on an office, each candidate for the office is entitled to be
present at the recount and have watchers present in the number corresponding to the
number of counting teams designated for the recount. If only one counting team is
designated or the recount is conducted on automatic tabulating equipment, each candidate is
entitled to two watchers.
 (c) In a recount of an election on an office for which a political party has a nominee or for
which a candidate is aligned with a political party, the party is entitled to have watchers
present in the same number prescribed for candidates under Subsection (b).
 (d) In a recount of an election on a measure, watchers may be appointed by the campaign
treasurer or assistant campaign treasurer of a specific-purpose political committee that
supports or opposes the measure in the number corresponding to the number of counting
teams designated for the recount. If only one counting team is designated or the recount is
conducted on automatic tabulating equipment, each eligible specific-purpose political
committee is entitled to two watchers.
 (e) A watcher appointed to serve at a recount must deliver a certificate of appointment to the
recount committee chair at the time the watcher reports for service. A watcher who presents
himself or herself for service at any time immediately before or during the recount and
submits a proper certificate of appointment must be accepted for service unless the number
of appointees to which the appointing authority is entitled have already been accepted.
 (f) The certificate must be in writing and must include:
o (1) the printed name and the signature of the watcher;
o (2) the election subject to the recount;
o (3) the time and place of the recount;
o (4) the measure, candidate, or political party being represented;
o (5) the signature and the printed name of the person making the appointment; and
o (6) an indication of the capacity in which the appointing authority is acting.
 (g) If the watcher is accepted for service, the recount committee chair shall keep the
certificate and deliver it to the recount coordinator after the recount for preservation under
Section 211.007. If the watcher is not accepted for service, the recount committee chair shall
return the certificate to the watcher with a signed statement of the reason for the rejection.
 (h) Each person entitled to be present at a recount is entitled to observe any activity
conducted in connection with the recount. The person is entitled to sit or stand conveniently
near the officers conducting the observed activity and near enough to an officer who is
announcing the votes or examining or processing the ballots to verify that the ballots are
counted or processed correctly or to an officer who is tallying the votes to verify that they are
tallied correctly. Rules concerning a watcher’s rights, duties, and privileges are otherwise the
same as those prescribed by this code for poll watchers to the extent they can be made
applicable.
 (i) No device capable of recording images or sound is allowed inside the room in which the
recount is conducted, or in any hallway or corridor in the building in which the recount is
conducted within 30 feet of the entrance to the room, while the recount is in progress unless
the person entitled to be present at the recount agrees to disable or deactivate the device.
However, on request of a person entitled to appoint watchers to serve at the recount, the
recount committee chair shall permit the person to photocopy under the chair’s supervision
any ballot, including any supporting materials, challenged by the person or person’s watcher.
The person must pay a reasonable charge for making the copies and, if no photocopying
equipment is available, may supply that equipment at the person’s expense. The person
shall provide a copy on request to another person entitled to appoint watchers to serve at the
recount.
History
Enacted by Acts 1985, 69th Leg., ch. 211 (S.B. 616), § 1, effective January 1, 1986; am. Acts 1987,
70th Leg., 2nd C.S., ch. 59 (H.B. 19), § 13, effective October 20, 1987; am. Acts 1993, 73rd Leg.,
ch. 728 (H.B. 75), § 75, effective September 1, 1993; am. Acts 1997, 75th Leg., ch. 864 (H.B.
1603), § 218, effective September 1, 1997; am. Acts 2009, 81st Leg., ch. 1235 (S.B. 1970), § 21,
effective September 1, 2009; am. Acts 2011, 82nd Leg., ch. 1164 (H.B. 2817), § 37, effective
September 1, 2011.
Texas Rule of App. P.
Rule 45 Damages for Frivolous Appeals in Civil Cases
If the court of appeals determines that an appeal is frivolous, it may - on motion of any party or on its
own initiative, after notice and a reasonable opportunity for response - award each prevailing party
just damages. In determining whether to award damages, the court must not consider any matter
that does not appear in the record, briefs, or other papers filed in the court of appeals.
Texas Rule of Civil Procedure
Rule 11 Agreements to Be in Writing
Unless otherwise provided in these rules, no agreement between attorneys or parties touching any
suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the
record, or unless it be made in open court and entered of record.
 192.3. Scope of Discovery.
o (a) Generally. --In general, a party may obtain discovery regarding any matter that
is not privileged and is relevant to the subject matter of the pending action, whether it
relates to the claim or defense of the party seeking discovery or the claim or defense
of any other party. It is not a ground for objection that the information sought will be
inadmissible at trial if the information sought appears reasonably calculated to lead to
the discovery of admissible evidence.
o (b) Documents and Tangible Things. --A party may obtain discovery of the
existence, description, nature, custody, condition, location, and contents of
documents and tangible things (including papers, books, accounts, drawings, graphs,
charts, photographs, electronic or videotape recordings, data, and data compilations)
that constitute or contain matters relevant to the subject matter of the action. A
person is required to produce a document or tangible thing that is within the person's
possession, custody, or control.
o (c) Persons with Knowledge of Relevant Facts. --A party may obtain discovery of
the name, address, and telephone number of persons having knowledge of relevant
facts, and a brief statement of each identified person's connection with the case. A
person has knowledge of relevant facts when that person has or may have
knowledge of any discoverable matter. The person need not have admissible
information or personal knowledge of the facts. An expert is "a person with
knowledge of relevant facts" only if that knowledge was obtained first-hand or if it
was not obtained in preparation for trial or in anticipation of litigation.
o (d) Trial Witnesses. --A party may obtain discovery of the name, address, and
telephone number of any person who is expected to be called to testify at trial. This
paragraph does not apply to rebuttal or impeaching witnesses the necessity of whose
testimony cannot reasonably be anticipated before trial.
Texas Rules of Civil Procedure
 193.4. Hearing and Ruling on Objections and Assertions of Privilege.
o (a) Hearing. --Any party may at any reasonable time request a
hearing on an objection or claim of privilege asserted under this rule.
The party making the objection or asserting the privilege must present
any evidence necessary to support the objection or privilege. The
evidence may be testimony presented at the hearing or affidavits
served at least seven days before the hearing or at such other
reasonable time as the court permits. If the court determines that an in
camera review of some or all of the requested discovery is necessary,
that material or information must be segregated and produced to the
court in a sealed wrapper within a reasonable time following the
hearing.
o (b) Ruling. --To the extent the court sustains the objection or claim
of privilege, the responding party has no further duty to respond to
that request. To the extent the court overrules the objection or claim of
privilege, the responding party must produce the requested material or
information within 30 days after the court's ruling or at such time as
the court orders. A party need not request a ruling on that party's own
objection or assertion of privilege to preserve the objection or
privilege.
o (c) Use of Material or Information Withheld Under Claim of
Privilege. --A party may not use - at any hearing or trial - material or
information withheld from discovery under a claim of privilege,
including a claim sustained by the court, without timely amending or
supplementing the party's response to that discovery.
Sec. 231.009. PRECEDENCE OF CONTEST ON APPEAL. An election contest
has precedence in the appellate courts and shall be disposed of as expeditiously as
practicable.
Tex. Elec. Code § 52.070
Sec. 52.070. Voting Square and Instruction for Candidates.
 (a) A square for voting shall be printed to the left of each candidate’s name on a ballot.
 (b) Immediately below “OFFICIAL BALLOT,” the following instruction shall be
printed: “Vote for the candidate of your choice in each race by placing an ‘X’ in the
square beside the candidate’s name.”
 (c) Appropriate changes in the instruction shall be made if only one race appears on the
ballot or if more than one candidate is to be elected in a race.
 (d) If more than one candidate is to be elected in any race on the ballot, “Vote for none,
one, two, or ” (in the numerical sequence appropriate for the number of candidates to be
elected) shall be printed immediately below each office title appearing on the ballot.
 (e) A square shall be printed to the left of each line provided for write-in voting under
Section 52.066(c), but failure to place a mark in the square does not affect the counting of
a write-in vote.
History
Enacted by Acts 1985, 69th Leg., ch. 211 (S.B. 616), § 1, effective January 1, 1986; am. Acts
1987, 70th Leg., ch. 472 (H.B. 612), § 14, effective September 1, 1987; am. Acts 1987, 70th
Leg., ch. 497 (H.B. 2364), § 2, effective September 1, 1987.
Sec. 52.064. DESIGNATION AS OFFICIAL BALLOT. "OFFICIAL BALLOT"
shall be printed in large letters on the ballot immediately below the designation and
date of the election.
Sec. 213.013. REPRESENTATION OF PARTIES AND POLITICAL
PARTIES AT RECOUNT. (a) Each person entitled to notice of the
recount under Section 213.009 is entitled to be present at a
recount.
(b) In a recount of an election on an office, each
candidate for the office is entitled to be present at the
recount and have watchers present in the number corresponding to
the number of counting teams designated for the recount. If
only one counting team is designated or the recount is conducted
on automatic tabulating equipment, each candidate is entitled to
two watchers.
(c) In a recount of an election on an office for which a
political party has a nominee or for which a candidate is
aligned with a political party, the party is entitled to have
watchers present in the same number prescribed for candidates
under Subsection (b).
(d) In a recount of an election on a measure, watchers may
be appointed by the campaign treasurer or assistant campaign
treasurer of a specific-purpose political committee that
supports or opposes the measure in the number corresponding to
the number of counting teams designated for the recount. If
only one counting team is designated or the recount is conducted
on automatic tabulating equipment, each eligible specific-
purpose political committee is entitled to two watchers.
(e) A watcher appointed to serve at a recount must deliver
a certificate of appointment to the recount committee chair at
the time the watcher reports for service. A watcher who
presents himself or herself for service at any time immediately
before or during the recount and submits a proper certificate of
appointment must be accepted for service unless the number of
appointees to which the appointing authority is entitled have
already been accepted.
(f) The certificate must be in writing and must include:
(1) the printed name and the signature of the
watcher;
(2) the election subject to the recount;
(3) the time and place of the recount;
(4) the measure, candidate, or political party being
represented;
(5) the signature and the printed name of the person
making the appointment; and
(6) an indication of the capacity in which the
appointing authority is acting.
(g) If the watcher is accepted for service, the recount
committee chair shall keep the certificate and deliver it to the
recount coordinator after the recount for preservation under
Section 211.007. If the watcher is not accepted for service,
the recount committee chair shall return the certificate to the
watcher with a signed statement of the reason for the rejection.
(h) Each person entitled to be present at a recount is
entitled to observe any activity conducted in connection with
the recount. The person is entitled to sit or stand
conveniently near the officers conducting the observed activity
and near enough to an officer who is announcing the votes or
examining or processing the ballots to verify that the ballots
are counted or processed correctly or to an officer who is
tallying the votes to verify that they are tallied correctly.
Rules concerning a watcher's rights, duties, and privileges are
otherwise the same as those prescribed by this code for poll
watchers to the extent they can be made applicable.
(i) No device capable of recording images or sound is
allowed inside the room in which the recount is conducted, or in
any hallway or corridor in the building in which the recount is
conducted within 30 feet of the entrance to the room, while the
recount is in progress unless the person entitled to be present
at the recount agrees to disable or deactivate the device.
However, on request of a person entitled to appoint watchers to
serve at the recount, the recount committee chair shall permit
the person to photocopy under the chair's supervision any
ballot, including any supporting materials, challenged by the
person or person's watcher. The person must pay a reasonable
charge for making the copies and, if no photocopying equipment
is available, may supply that equipment at the person's expense.
The person shall provide a copy on request to another person
entitled to appoint watchers to serve at the recount.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Amended by Acts 1987, 70th Leg., 2nd C.S., ch. 59, Sec. 13, eff.
Oct. 20, 1987; Acts 1993, 73rd Leg., ch. 728, Sec. 75, eff.
Sept. 1, 1993; Acts 1997, 75th Leg., ch. 864, Sec. 218, eff.
Sept. 1, 1997.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1235 (S.B. 1970), Sec. 21,
eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 1164 (H.B. 2817), Sec. 37,
eff. September 1, 2011.
Sec. 33.061. UNLAWFULLY OBSTRUCTING WATCHER. (a) A
person commits an offense if the person serves in an official
capacity at a location at which the presence of watchers is
authorized and knowingly prevents a watcher from observing an
activity the watcher is entitled to observe.
(b) An offense under this section is a Class A
misdemeanor.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
Rule 329b Time for Filing Motions
 The following rules shall be applicable to motions for new trial and motions to modify, correct,
or reform judgments (other than motions to correct the record under Rule 316) in all district
and county courts:
o (a) A motion for new trial, if filed, shall be filed prior to or within thirty days after the
judgment or other order complained of is signed.
o (b) One or more amended motions for new trial may be filed without leave of court
before any preceding motion for new trial filed by the movant is overruled and within
thirty days after the judgment or other order complained of is signed.
o (c) In the event an original or amended motion for new trial or a motion to modify,
correct or reform a judgment is not determined by written order signed within
seventy-five days after the judgment was signed, it shall be considered overruled by
operation of law on expiration of that period.
o (d) The trial court, regardless of whether an appeal has been perfected, has plenary
power to grant a new trial or to vacate, modify, correct, or reform the judgment within
thirty days after the judgment is signed.
o (e) If a motion for new trial is timely filed by any party, the trial court, regardless of
whether an appeal has been perfected, has plenary power to grant a new trial or to
vacate, modify, correct, or reform the judgment until thirty days after all such timely-
filed motions are overruled, either by a written and signed order or by operation of
law, whichever occurs first.
o (f) On expiration of the time within which the trial court has plenary power, a
judgment cannot be set aside by the trial court except by bill of review for sufficient
cause, filed within the time allowed by law; provided that the court may at any time
correct a clerical error in the record of a judgment and render judgment nunc pro tunc
under Rule 316, and may also sign an order declaring a previous judgment or order
to be void because signed after the court's plenary power had expired.
o (g) A motion to modify, correct, or reform a judgment (as distinguished from motion
to correct the record of a judgment under Rule 316), if filed, shall be filed and
determined within the time prescribed by this rule for a motion for new trial and shall
extend the trial court's plenary power and the time for perfecting an appeal in the
same manner as a motion for new trial. Each such motion shall be in writing and
signed by the party or his attorney and shall specify the respects in which the
judgment should be modified, corrected, or reformed. The overruling of such a
motion shall not preclude the filing of a motion for new trial, nor shall the overruling of
a motion for new trial preclude the filing of a motion to modify, correct, or reform.
o (h) If a judgment is modified, corrected or reformed in any respect, the time for
appeal shall run from the time the modified, corrected, or reformed judgment is
signed, but if a correction is made pursuant to Rule 316 after expiration of the period
of plenary power provided by this rule, no complaint shall be heard on appeal that
could have been presented in an appeal from the original judgment.
Sec. 52.075.
MODIFICATION OF BALLOT FORM FOR CERTAIN VOTING
The secretary of state may prescribe the form and content of a
ballot for an election using a voting system, including an
electronic voting system or a voting system that uses direct
recording electronic voting machines, to conform to the
formatting requirements of the system