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<br />e <br /> <br />. <br /> <br />..... <br /> <br />- <br /> <br />e <br /> <br />e <br /> <br />KNOX W. ASKINS, .J. D., P. C. <br />ATTORNEY AT LAW <br /> <br />702 W, FAIRMONT PARKWAY <br />p, 0, BOX 1218 <br /> <br />GAIL..I, HAMILTON...I, 0, <br />ASSOCIATE <br /> <br />LA PORTE. TEXAS 77571 <br /> <br />TELEPHONE <br />713 471-1886 <br /> <br />April 27, 1981 <br /> <br />Hon. Mayor and City Council <br />CITY OF LA PORTE <br />City Hall <br />La Porte, Texas 77571 <br /> <br />Dear Lady and Gentlemen: <br /> <br />You have requested my opinion concerning the duties of the La Porte <br />Ci ty Counc iI, sitting as a canvassing board, following the runoff <br />election which was held on April 25, 1981. <br /> <br />Although a total of 339 votes were cast for all six candidates in <br />the three Districts, on the absentee voting machine, only 327 voters <br />had signed the voter list (322 voting in person; 5 voting with mail <br />ballots, which are placed on the voting machine by the Mayor and <br />the Election Judge, on Election Day, for a total of 327). Thus, <br />12 illegal votes were cast. <br /> <br />The winning candidate's margin over the losing candidate, in District <br />2 and District 4, was, in each case, in excess of 12 votes. In <br />Texas, the Court will not consider the illegality of votes cast at <br />an election where, if the votes were deducted, the resu1 ts of the <br />election would not be changed. Dubose v Ainsworth (Tex. Civ. App.) <br />139 SW2d 307, error dismissed; Fugate v Johnston (Tex. Civ. App.) <br />251 SW2d 392, rehearing denied. <br /> <br />In the case of District 5, however, the winning candidate's margin <br />over the losing candidate was but 4 votes. However, in that District, <br />it can be ascertained from the voter list, that while 99 eligible <br />voters signed the voter list, 100 absentee votes were cast. Thus, <br />it is apparent that one illegal vote was cast in the District 5 <br />contest. <br /> <br />The Texas Courts have held that the City Council, sitting as a can- <br />vassing board, has a ministerial duty to canvass the votes, receiving <br />the official reports and tally sheets from the Election Judges, and <br />the further duty to declare the results of the election. A duty is <br />considered "ministerial" in law, when it is such that it is a duty <br />which must be exercised according to law, with no allowance for the <br />exercise of any discretion upon the part of the officer exercising <br />the duty. A writ of mandamus will be directed to election officials <br />requiring them to make the returns, canvass them, and declare the <br />