MEMORANDUM OPINION

No. 04-12-00469-CV

Armando BARRERA,

Appellant

v.

Carlos Omar GARCIA,

Appellee

From the 79th Judicial District Court, Jim Wells County, Texas

Trial Court No. 12-07-51258

Honorable Don Wittig, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: September 19, 2012

AFFIRMED

This appeal arises from an election contest challenging the outcome of the vote in the 

Democratic Party Primary for the Office of District Attorney for the 79th Judicial District. 

Armando Barrera contends the trial court abused its discretion in not declaring him the winner of 

the primary because 59 ballots were duplicated contrary to section 127.126 of the Texas Election 
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Code and 14 eligible votes were not counted. We overrule Barrera’s first issue and affirm the 

trial court’s judgment.1

BACKGROUND

After a recount, Carlos Omar Garcia was declared the winner in the Democratic Party 

Primary for the Office of District Attorney for the 79th Judicial District by 19 votes. Barrera 

filed an election contest challenging the outcome. Pertinent to this appeal, Barrera challenged 

the manner in which 59 mail-in ballots were duplicated and the failure to count an additional 14 

ballots. If the 59 mail-in ballots were excluded from the vote count, the vote for the two 

candidates would result in a tie; however, if the 14 uncounted ballots were also counted, Barrera 

asserts he would be declared the winner by 14 votes.

The original mail-in ballots sent by the county elections officer for Jim Wells County, 

which is included in the 79th Judicial District, omitted a candidate’s name in an unrelated race. 

Although corrected ballots were mailed, 59 of the original ballots that had excluded the name 

were returned. These ballots could not be counted by the machine because the machine was 

calibrated to count the corrected ballot. Accordingly, the votes from the original ballots were 

duplicated to enable them to be counted. The original ballots were kept in a separate box. The 

duplicate ballots could be identified because they were the only mail-in ballots that were not 

folded. Finally, Barrera stipulated that the duplicate ballots were accurate copies of the original 

ballots.

After hearing the evidence presented in the election contest, the trial court overruled the 

contest.

 1 We do not address Barrera’s second issue because it is not necessary to the disposition of this appeal. TEX. R. APP.

P. 47.1.
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STANDARD OF REVIEW

A judgment in an election contest is reviewed for abuse of discretion. Reese v. Duncan, 

80 S.W.3d 650, 655 (Tex. App.—Dallas 2002, pet. denied); Tiller v. Martinez, 974 S.W.2d 769, 

772 (Tex. App.—San Antonio 1998, pet. dism’d w.o.j.). A trial court abuses its discretion with 

regard to the resolution of factual issues if the trial court could reasonably have reached only one 

decision which is contrary to the decision reached. Walker v. Packer, 827 S.W.2d 833, 839-40 

(Tex. 1992). “A trial court has no ‘discretion’ in determining what the law is or applying the law 

to the facts.” Id. at 840. “Thus a clear failure by the trial court to analyze or apply the law 

correctly will constitute an abuse of discretion.” Id.

ELECTION CONTEST

In order for the outcome of an election to be set aside, the contestant has the burden of 

proving: (1) violations of the Election Code occurred; and (2) those violations materially affected 

the outcome of the election. Willet v. Cole, 249 S.W.3d 585, 589 (Tex. App.—Waco 2008, no 

pet.); Garza v. Alcala, No. 04-04-00855-CV, 2006 WL 1080241, at *2 (Tex. App.—San Antonio 

Apr. 26, 2006, no pet.) (mem. op.). “The outcome of an election is ‘materially affected’ when a 

different and correct result would have been reached in the absence of the irregularities.” Willet, 

249 S.W.3d at 589.

An election contestant’s burden is a heavy one, and the declared results of an election 

will be upheld in all cases except where there is clear and convincing evidence of an erroneous 

result. Willet, 249 S.W.3d at 589; Garza, 2006 WL 1080241, at *2. The clear and convincing 

standard requires more proof than the preponderance of the evidence standard applicable in most 

civil cases. Willet, 249 S.W.3d at 589; Garza, 2006 WL 1080241, at *2. To be clear and 

convincing, the evidence must produce in the mind of the trier of fact a firm belief or conviction 
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as to the truth of the allegations sought to be proved. Willet, 249 S.W.3d at 589; Garza, 2006 

WL 1080241, at *2.

SECTION 127.126

Section 127.126(a) of the Texas Election Code gives the manager of a central counting 

station the discretion to have ballots duplicated for automatic counting. TEX. ELEC. CODE ANN.

§ 127.126(a) (West 2010). Barrera’s argument regarding the duplication of the 59 mail-in ballots 

is based on section 127.126(e) of the Texas Election Code, which provides, “Each duplicate 

ballot must be clearly labeled ‘Duplicate’ and must bear the serial number of the original ballot.” 

Id. at § 127.126(e). Barrera’s argument is premised on the language in section 127.126(e) being 

mandatory, thereby invalidating duplicate ballots that are not labeled “Duplicate” or do not 

contain the serial number of the original ballot.

This premise for Barrera’s argument is, however, contrary to the general rule of statutory 

interpretation with regard to election law. “The general rule of interpretation is that the election 

laws are to be construed as directory in the absence of fraud or a mandatory provision which 

requires the voiding of a ballot for failure to comply with its provisions.” Reese v. Duncan, 80 

S.W.3d at 658 (quoting Kelley v. Scott, 733 S.W.2d 312, 313-14 (Tex. App.—El Paso 1987, writ 

dism’d)). As this court has previously explained:

The general rule is that the performance of duties placed upon the election 

officials are directory, unless made mandatory by statute, while those placed upon 

the voters are mandatory. It has been said many times by our courts that the 

object of every popular election is to ascertain the will of the qualified electors in 

the area to be affected thereby upon the issue or issues submitted to them. Our 

courts have also said that statutory enactments concerning elections must be 

strictly enforced to prevent fraud but liberally construed in order to ascertain and 

effectuate the will of the voters. The rule is that statutes regulating the manner of 

holding an election are merely directory and a departure from their provisions will 

not ordinarily invalidate an election, unless such departure or such irregularities 

have affected or changed the results of the election.
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This court in Fugate v. Johnson, 251 S.W.2d 792 (Tex. Civ. App.—San 

Antonio 1952, no writ), stated that the aim of the Election Code is to safeguard 

the purity of the ballot box and at the same time to see that the will of the people 

shall prevail. The purpose of the Code is to prohibit error, fraud, mistake, and 

corruption, and yet it may not be used as an instrument of disfranchisement for 

irregularities of procedure. Since the will of the legal voters as expressed at the 

polls is the matter of paramount concern, and, in the absence of any showing of 

fraud, or reasonable indication that such will has not been fairly expressed and the 

evidence thereof properly preserved, the courts have been liberal in construing 

and enforcing as directory only the provisions of the election laws which are not 

upon their face clearly mandatory. Id. at 793.

Prado v. Johnson, 625 S.W.2d 368, 369-70 (Tex. Civ. App.—San Antonio 1981, writ dism’d). 

In this case, Barrera stipulated the original mail-in ballots were accurately duplicated, and 

section 127.126 does not contain a provision prohibiting the counting of a duplicate ballot that 

does not comply with section 127.126(e).2

 Compare Reese, 80 S.W.3d at 657-58 (construing 

election statute that expressly stated, “a ballot returned in violation of this section may not be 

counted.”). Accordingly, we hold that section 127.126 is directory with regard to the duplication 

of ballots, and because Barrera stipulated the ballots were accurately duplicated, the trial court 

did not abuse its discretion in overruling Barrera’s contest.

CONCLUSION

The trial court’s judgment is affirmed. Given the election’s timing, Barrera’s request that 

this court decline to entertain any motion for rehearing is granted, and the clerk of this court is 

directed to issue this court’s mandate contemporaneously with this court’s opinion and judgment. 

See TEX. R. APP. P. 18.1(c).

Catherine Stone, Chief Justice

 2 Barrera cites Thompson v. Willis, 881 S.W.2d 221 (Tex. App.—Beaumont 1994, no writ), as an example of a case 

holding that the improper duplication of ballots voids the ballots. In that case, however, the election officials 

marked over the very ballots previously marked by the voters. Id. at 223. Because the election officials marked on 

the voter’s original ballots, the court held that the election officials rendered assistance to the voters in violation of 

Chapter 64 of the Election Code, which provided: “If assistance is provided to a voter who is not eligible for 

assistance, the voter’s ballot may not be counted.” Id. at 223-224. Accordingly, in accordance with the general rule 

of interpretation, the over-marked ballots in that case could not be counted because the mandatory language of the 

statute prohibited the ballots from being counted. Id. at 224-25.