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HomeMy WebLinkAboutOrd. 1981-1258 - canvass runoff election . . - ORDINANCE NO. 1258 AN ORDINANCE DECLARING THE RESULTS OF THE RUNOFF ELECTION HELD IN THE CITY OF LA PORTE ON APRIL 25, 1981, FOR THE ELECTION OF A COUNCILPERSON--DISTRICT 2; COUNCILPERSON--DISTRICT 4; AND COUNCILPERSON--DISTRICT 5. WHEREAS, there was held in the City of La Porte, on the 25th day of April, 1981, a runoff election for the purpose of electing a Councilperson--District 2; Councilperson--District 4; and Councilperson--District 5; in accordance wi th Section 8.10 of the Home Rule Charter of the City of La Porte. . WHEREAS, there were cast at said election for the follow- ing listed persons the number of votes opposite their respect- ive names: COUNCILPERSON--DISTRICT 2: E. F. "Red" Westen 49 John D. Carr Longley 67 COUNCILPERSON--DISTRICT 4: Hal Lawler 248 Deotis Gay 277 COUNCILPERSON--DISTRICT 5: e Andy Wilson 195 B. Don Skelton 199 as shown in the official election returns heretofore delivered by the Election Judge and officials to the Mayor and City Council of the City of La Porte and submitted to the City Council. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: Section 1. That said election was duly called and notice thereof given in accordance with law; that said election was -- held in the manner required by law; that due returns of said - election have been made by the proper officers; that said re- turns have been canvassed by the Ci ty Council of the Ci ty of . e It Ordinance No. 1258, Page 2. La Porte; that said election has resul ted in the election of the following named persons, to-wit: COUNCILPERSON--DISTRICT 2: John D. Carr Longley COUNCILPERSON--DISTRICT 4: . Deotis Gay COUNCILPERSON--DISTRICT 5: B. Don Skelton Section 2. Ordinance No. 1257, passed and approved April 25, 1981, to the extent any part thereof is in conflict here- with, is hereby repealed to the extent of such conflict only. e Section 3. The City Council officially finds, deter- mines, recites and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Article 6252-17, Texas Revised Civil Statutes Annotated; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 40 This Ordinance shall take effect and be in force from and after its passage and approval, and it is so Ordered. . e . Ordinance No. 1258, Page 3. PASSED AND APPROVED, this the 27th day of April, 1981. CITY OF r;~ ~ J. J. Meza, Mayor) By . ATTEST: 44tfJa!/}~ .. .~~~:=.;;:... AP PROVE D: ~ -aJ ~L..J C1ty Attorney -. ....... e . ..... - e e KNOX W. ASKINS, .J. D., P. C. ATTORNEY AT LAW 702 W, FAIRMONT PARKWAY p, 0, BOX 1218 GAIL..I, HAMILTON...I, 0, ASSOCIATE LA PORTE. TEXAS 77571 TELEPHONE 713 471-1886 April 27, 1981 Hon. Mayor and City Council CITY OF LA PORTE City Hall La Porte, Texas 77571 Dear Lady and Gentlemen: You have requested my opinion concerning the duties of the La Porte Ci ty Counc iI, sitting as a canvassing board, following the runoff election which was held on April 25, 1981. Although a total of 339 votes were cast for all six candidates in the three Districts, on the absentee voting machine, only 327 voters had signed the voter list (322 voting in person; 5 voting with mail ballots, which are placed on the voting machine by the Mayor and the Election Judge, on Election Day, for a total of 327). Thus, 12 illegal votes were cast. The winning candidate's margin over the losing candidate, in District 2 and District 4, was, in each case, in excess of 12 votes. In Texas, the Court will not consider the illegality of votes cast at an election where, if the votes were deducted, the resu1 ts of the election would not be changed. Dubose v Ainsworth (Tex. Civ. App.) 139 SW2d 307, error dismissed; Fugate v Johnston (Tex. Civ. App.) 251 SW2d 392, rehearing denied. In the case of District 5, however, the winning candidate's margin over the losing candidate was but 4 votes. However, in that District, it can be ascertained from the voter list, that while 99 eligible voters signed the voter list, 100 absentee votes were cast. Thus, it is apparent that one illegal vote was cast in the District 5 contest. The Texas Courts have held that the City Council, sitting as a can- vassing board, has a ministerial duty to canvass the votes, receiving the official reports and tally sheets from the Election Judges, and the further duty to declare the results of the election. A duty is considered "ministerial" in law, when it is such that it is a duty which must be exercised according to law, with no allowance for the exercise of any discretion upon the part of the officer exercising the duty. A writ of mandamus will be directed to election officials requiring them to make the returns, canvass them, and declare the . e Hon. Mayor and City Council La Porte, Texas Page 2 4/27/81 e resul t, inasmuch as it is the voters' right to have the resul t declared. Dean v State, 88 Tex. 290, 30 SW 1047, rehearing denied; In re Burge, 24 SW 289. Only a Court, and not a canvassing board, may declare an election void. Shelor v Commissioners Court (Tex. Civ. App.) 304 SW2d 153, rehearing denied. Ci ty Council, therefore, has no legal power to invalidate the District 5 election and call another election. Under the authority of these cases, and also the recent Texas Supreme Court case of Grant v Ammerman, (Sp. Ct. 1969) 437 SW2d 547, and the case of Williamson v Kempf (Tex. Civ. App.) 574 SW2d 845, the win- ning candidate could obtain a writ of mandamus from a Harris County District Judge, ordering the La Porte Ci ty Council to canvass the votes, declare the result, issue him a Certificate of Election, and administer the oath of office to him. Under the' Texas Election Code, the sole remedy of the losing candi- date, if he chooses to do so, is to file a statutory election contest A wi th the Courts. Only a Judge can examine the conduct of the elec- W" tion, and make a determination on the legal issues raised in the election contesto Strictly speaking, there can be no statutory elec- tion contest until the election is completed, that is, until the votes are canvassed and the results declared. Maddox v Commissioners Court (Tex. Civ. App.) 222 SW2d 475. The losing candidate has thirty days from the return date of the election, within which to file his elec- tion contest. The contest is between the candidates seeking the office, and the City of La Porte is not a formal party to the election contest. An election contest in District 5 would not affect any other District. I had a telephone conference with Mr. Tom Clark, Election Administrator in the Office of the Texas Secretary of State, who is the Chief Election Officer of the State, and Mr. Mahon B. Garry, an Election Attorney in the Secretary of State's office, this morning. They each confirmed that the above is a correct statement of Texas law on this matter, and that the La Porte City Council is under a legal duty to canvass the votes and declare the winner, based on the votes cast. I have, accordingly, prepared an ordinance to that effect. ~ ~r:::~ Knox W. Askins City Attorney City of La Porte - KWA: jm