Cavallin v. Ivey | Cases | Westlaw

This is an appeal from a judgment of the District Court of Brewster County in an election contest. Contestant, Rex Ivey, Jr., contested the results of the official canvass of the votes cast in the Democratic Primary election of May 5, 1962, for the office of County Commissioner of Precinct No. 4 of Brewster County, wherein contestee, Oscar M. Cavallin, received 32 votes and contestant, Rex Ivey, Jr., received 26 votes for such office.

Contestant Ivey contested the validity of sixteen votes cast for Cavallin and contestee Cavallin contested the validity of nine votes cast for Ivey.

Trial was to the court without the intervention of a jury. In its judgment the court found two votes cast for contestant to be illegal, and eleven votes cast for contestee to be illegal. Judgment was entered decreeing contestant, Rex Ivey, Jr., elected as the nominee of the Democratic party for the office of Commissioner of Precinct 4, by a vote of 24 for Ivey to 21 for Cavallin. From such judgment appellant, Oscar M. Cavallin, has perfected this appeal.

Appellant has conceded that the trial court did not err in holding that the votes cast for appellant by Fred Guliher and wife, Anita Guliher, were illegal votes. *911 By his points for error appellant charges that the court erred in holding that the votes cast for him by nine other individuals were illegal, and in holding to be legal four votes that were cast for appellee, Rex Ivey, Jr. By cross-assignments appellee Ivey has attacked the ruling of the court on two votes.

We will first consider appellant's points by which it is charged that the trial court erred in holding as illegal, and in deducting, nine votes from the total votes cast for appellant. (Points Nos. 1, 2, 4 and 6).

The trial court found that the votes cast by Domingo Gonzales and Herminio Gonzales were cast for contestee; that such votes were illegal votes ‘because such voters were not entitled to vote in said election in said Voting Precinct No. 4.’

Domingo and Herminio Gonzales are brothers. Both are citizens of the United States. Both are married. Domingo was born at Terlingua, Texas and is married to a United States citizen. Herminio's wife, however, is a citizen of the Republic of Mexico. The wives of the two men each live in the town of Santa Helena in the Republic of Mexico, and for many years both men have ‘visited’ their respective wives only on Sundays once every seven to fifteen days. Domingo has been married for twenty years, and Herminio for twelve years. They have seven and six children, respectively. Both men own dwellings located in the Republic of Mexico in which their wives and children reside, but neither owns any real property in the United States. There is no indication that either man has ever worked anywhere but in the United States. For the past two or three years, while working in the vicinity of Terlingua, in Brewster County, they have occupied a house owned by a cousin, Chico Ramirez. Part of the time they have occupied quarters furnished them by their employer, a contractor in Big Bend National Park. Both men had valid poll tax receipts, and there is no question but that the place in which they lived, slept and prepared their own food for at least six days out of every week was in the precinct in which they sought to vote.

This is an unusual fact situation, and we have been unable to find any Texas cases precisely in point. Unquestionably, had they been single, both men would be entitled to have their votes counted in the election in which they cast their ballots. The question presented here is whether they (being otherwise qualified electors) forfeited their right to vote, not only in the precinct in which they lived, but anywhere in the State of Texas, by virtue of the fact that both men were married to women who lived and resided outside of the boundaries of the United States.

Article 6, Section 1 of the Texas Constitution, Vernon's Ann.St. designates the classes of persons who shall not be allowed to vote in this state, to-wit: Persons under twenty-one years of age; idiots and lunatics; all paupers supported by any county; and all persons convicted of any felony, subject to such exceptions as the Legislature may make.

Section 2 of Article 6 provides in part as follows:

There is no evidence that either of the Gonzales brothers ever lived anywhere other than in Texas, except for weekly or semi-monthly overnight trips into the *912 Republic of Mexico to visit their wives and children.

In Farrell v. Jordan, supra, appellant asserted that the trial court erred in not deducting the vote of Fred Fields from the votes cast for appellee, because Fields was not a legal resident of Brazoria County (where he voted) on the ground that his wife resided in Bay City, Matagorda County, and that his residence was where his wife resides, if they are not permanently separated.

Fields testified that he had a business in Rosharon, Brazoria County, and that he considered it his permanent residence, but that his wife did not live there because ‘she doesn't like things at Rosharon.’ Fields owns the home occupied by his wife in Bay City and claims a homestead exemption on it. He and his wife have been married for 49 years, and he goes to see (visits) her nearly every week-end and stays in the home, except during harvest season. He eats and sleeps ninety per cent of the time in Rosharon, but if he were to sell out in Rosharon he would go back to Bay City.

The trial court held Fields to be a qualified voter at Rosharon, in Brazoria County, where he voted, and the Houston Court of Civil Appeals affirmed such holding, saying:

In a 1936 opinion by this court in the case of Stratton v. Hall, supra, we held that the question of residence of a married person for voting purposes under Article 2958 (Article 5.08, Texas Election Code, V.A.T.S.) is one which must be determined by reference to the actual facts and circumstances, one of which will be his intention. Such holding was expressly approved and adopted by the San Antonio Court of Civil Appeals in a 1940 opinion by Justice Norvell. (McBride v. Cantu, supra.)

On direct examination by counsel for contestant-appellee, the witness Domingo Gonzales testified as follows:

All of appellant's remaining points are based upon the assertion that the trial court erred in deducting certain votes from the total votes cast for appellant and in not deducting certain votes from the total votes cast for appellee. The basis of each assertion is that the legal residence of certain voters whose votes were held to be illegal was in Commisssioner's Precinct No. 4 of Brewster County, and in the case of certain other voters whose votes were determined by the trial court to be legal, that the legal residence of such voters was not in Commissioner's Precinct No. 4. In each instance the trial court, in determining whether a particular vote should or should not be deducted, necessarily found the residence of the challenged voter was in Commissioner's Precinct No. 4, or that it was not in such precinct. If there is evidence to sustain such findings, we may not disturb them.

Appellant's Point 1 presented a question of law and was sustained by us. Our decision has the effect of adding two votes to the total vote cast for appellant Oscar M. Cavallin, but does not change the result of the election as found by the trial court. Appellant's total vote is raised from 21 to 23 votes, against appellee's total of 24 votes, leaving appellee with a majority of one vote.

Our opinion renders it unnecessary for us to consider appellee's cross-assignments of error relating to two votes cast for appellant which the trial court held to be legal, and we therefore express no opinion with reference thereto.

The judgment of the trial court is affirmed.