Filed 10/17/2016 8:23:25 AM

Gwen Ashworth
District Clerk
Morris County, Texas
By: Londa Clark
Deputy

CAUSE NO. 25,959

CODY WOMACK,
Contestant
V.
MIKE ALCORN, MARIE SKIPPER,
Contestees

IN THE DISTRICT COURT

176TH JUDICIAL DISTRICT

MORRIS COUNTY, TEXAS

CONTESTEE MIKE ALCORNS MOTION FOR SUMMARY JUDGMENT

COMES NOW, Contestee, MIKE ALCORN (Movant), and files this, his Motion for
Summary Judgment, and in support thereof, and would show unto the Court the following:
I.
NO GENUINE ISSUES AS TO MATERIAL FACTS
There are no genuine issues as to any material facts, and Movant is entitled to judgment as
a matter of law.
II.
BASIS FOR MOTION
The Movant is entitled to a judgment as a matter of law because the facts alleged by
Contestant show that there are insurmountable obstacles to recovery. Namely, the Contestant, in
his Original Petition, affirms that Contestee Mike Alcorn was the winning candidate, even after a
recount, and fails to plead any facts that would indicate that illegal votes were counted or that an
election officer took some action that subverted the will of the voters.

CONTESTEE MIKE ALCORNS MOTION FOR SUMMARY JUDGMENT

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III.
STATEMENT OF FACTS
The Daingerfield Lone Star Independent School District Board of Trustees, on January
19, 2016 called for a May 7, 2016 Board election for single member District 4; and At Large,
Positions 3 and 4. See, Order of Election attached to Exhibit A to this Motion for Summary
Judgment. Movant filed an application to be placed on the May 7, 2016 election ballot for Board
Trustee (At Large)(Position 4) on February 15, 2016. See, Mike Alcorns Application for a Place
on the Ballot attached to Exhibit A to this Motion for Summary Judgment. Contestant Cody
Wommack also filed an application to be placed on the May 7, 2016 election ballot for Board of
Trustees Member At Large Position 4 on February 15, 2016. See, Cody Wommacks Application
for a Place on the Ballot attached to Exhibit A to this Motion for Summary Judgment.
Contestant did not file any written objection to the DLSISDs method of electing the AtLarge positions prior to the May 7, 2016 election. See, Affidavit of Sandra Quarles, Exhibit A
to this Motion for Summary Judgment.
The initial election returns showed that Contestee Marie Skipper won the election for AtLarge Position 3 with a total of 319 votes. Contestants Original Petition at Paragraph #10. With
regard to At-Large Position 4, the initial returns indicated that Movant Mike Alcorn prevailed with
352 votes (55%) as compared to 290 votes (45%) cast for Contestant Cody Wommack, a difference
of 62 votes. Id.
Pursuant to the Contestants demand for a recount, the At-Large Position 4 recount was
held on May 26, 2016 with the following results: Id.
Mike Alcorn
Cody Wommack

Difference

349 votes (55%)

288 votes (45%)
61 votes

CONTESTEE MIKE ALCORNS MOTION FOR SUMMARY JUDGMENT

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Accordingly, although the results of the recount decreased the Movants winning margin
over Contestant by one (1) vote, the candidates percentages of the vote remained the same. Id.
Further, the actual number of votes cast for Contestant decreased by two (2), from 290 to 288. Id.
IV.
ARGUMENTS AND AUTHORITIES
A. The Purpose of the Election Code.
The purpose of the [Election] 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.
Honts v. Shaw, 975 S.W.2d 816, 822 (Tex. App. -- Austin 1998). The Tyler Court of Appeals put
it slightly differently by stating: It is clear that the election laws will be strictly enforced to prevent
fraud, but liberally construed to effectuate the will of the voters at the election being contested.
Deffebach v. Chapel Hill Indep. Sch. Dist., 650 S.W.2d 510, 512 (Tex. App. -- Tyler 1983). The
Tyler Court then went on to say:
Indeed, it has been stated that the purpose of the election code and election laws
in general is to prohibit serious error, fraud, mistake and corruption, and . . . not
be used as an instrument of disfranchisement for irregularities of procedure.
Deffebach, 650 S.W.2d at 512; citing, Fugate v. Johnston, 251 S.W.2d 792 (Tex.
Civ. App. -- San Antonio 1952).
In other words, the will of the legal voters as expressed at the polls is the matter of paramount
concern. Honts, 975 S.W.2d at 822.
B. The Scope of the Inquiry in an Election Contest.
Texas Election Code 221.003(a) clearly spells out the scope of the inquiry in an election
contest by stating the following:
(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 counted; or

CONTESTEE MIKE ALCORNS MOTION FOR SUMMARY JUDGMENT

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(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.
Tex. Elec. Code 221.003(a).
C. The Contestant has not Pleaded any Facts or made any Allegations within the Scope
of the Inquiry of an Election Contest under Texas Election Code 221.003.
The Contestant has not asserted any claim upon which relief can be granted under the Texas
Election Code. As stated in Sections IV(A) and IV(B) above, the role of the Court in an election
contest is to determine whether or not the outcome of the election accurately reflects the will of
the voters. Texas Election Code 221.003 states that, in making that determination, the Court
should examine whether illegal votes were counted or whether an election officer or other
administrator 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. Tex. Elec. Code
221.003.
The Contestants Original Petition does not include any allegations of illegal votes being
counted. Contestants Original Petition. Likewise, the Original Petition does not include any
allegations that an election officer or other official administrator of the election prevented any
eligible voters from voting, failed to count legal votes, or engaged in fraud or illegal conduct or
made a mistake.1
The Contestant has not asserted any wrongdoing on the part of any election official that
thwarted the will of the voters. Accordingly, no election contest as recognized by the Texas

The Third Court of Appeals has held: Although the Election Code does not define the term "mistake," we hold
that 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, 823 (Tex. App. Austin 1998). No such mistake has been alleged
in this case.
1

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Election Code has actually been made. For that reason, Movant Mike Alcorn is entitled to
summary judgment in his favor.
D. The Final Canvass of Votes Reflects the True Outcome and Will of the Voters in the
Election in Question.
There can be no dispute that the will of the voters was expressed in the final canvass of
votes for the Daingerfield Lone Star ISD At-Large, Position 4 election. The initial canvass of
the votes indicated that Movant Mike Alcorn prevailed over the Contestant by a 62 vote margin,
with Movant receiving 55% of the votes cast and Contestant receiving 45%. After the recount
requested by the Contestant, Movant and Contestant retained the same percentages of the votes
even though the winning margin for Movant was reduced by one (1) vote (61 vote margin as
opposed to the initial 62 vote margin).
The Contestant does not even allege that the outcome of the final canvass does not reflect
the true outcome of the election. See, Contestants Original Petition. There being no dispute as
to the election results reflecting the true will of the voters, Movant Mike Alcorn is entitled to
summary judgment in his favor.
E. Daingerfield Lone Star ISD Did Not Conduct the May 7, 2016 Election in Violation
of Board Policy.
The Contestant alleges Daingerfield Lone Star ISD conducted the election in violation
of the district policy manual. Contestants Original Petition at Paragraph #14. In support of his
assertion, Contestant quotes the following from the Daingerfield Lone Star ISD Board Policy
Manual: For the at-large positions, the candidates receiving the highest number of votes shall fill
the positions of the terms which are normally expiring.

Education Code 11.057(a), (b).

Contestants Original Petition at Paragraph #8.

CONTESTEE MIKE ALCORNS MOTION FOR SUMMARY JUDGMENT

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Contestant has wrongfully attributed the cited language as being Board policy and has,
even more importantly, misinterpreted the language.
1.

The Daingerfield Lone Star ISD Policy Manuals (LEGAL) Sections

are not Policies Adopted by the Board of Trustees.

The language cited by Contestant in Paragraph #8 of his Original Petition quotes language
from BBB(LEGAL) from the Daingerfield Lone Star ISD Board Policy Manual. See, p. 4 of
BBB(LEGAL) which is attached to Exhibit A to this Motion for Summary Judgment. This cited
language is not, however, adopted policy of the Daingerfield Lone Star ISD.
The Introduction to the Daingerfield Lone Star ISD Board Policy Manual describes the
manual as including two separate conventions, (LEGAL) and (LOCAL), which are both
generically referred to as policies. See, Introduction to Board Policy Manual which is attached
to Exhibit A to this Motion for Summary Judgment. The (LEGAL) portions of the manual are
simply restatements of federal and state statutes, administrative regulations, attorney general
opinions, Texas Education Commissioner decisions, case law, and other sources of legal authority.
Id. at p. 2 of the Introduction.
While the (LEGAL) policies are helpful to school officials in determining certain legal
requirements, they do not constitute Daingerfield Lone Star ISD adopted policy. The Fifth
Circuit Court of Appeals has defined an official policy as [A] policy statement, ordinance,
regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking
officers or by an official to whom the lawmakers have delegated policy-making authority
Webster v. Houston, 735 F.2d 838, 841 (5th Cir. 1984)(emphasis added).
The Introduction to the Daingerfield Lone Star ISD Board Policy Manual specifically
states the following: Please note that (LEGAL) policies are NOT adopted by the Board. See,
Introduction to Board Policy Manual at p. 4 which is attached to Exhibit A to this Motion for

CONTESTEE MIKE ALCORNS MOTION FOR SUMMARY JUDGMENT

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Summary Judgment. The (LEGAL) sections of the Policy Manual are not, therefore, official
policies of Daingerfield Lone Star ISD. Accordingly, the District could not have conducted the
election in violation of Board policy as alleged by the Contestant.
2.

The Language Cited by Contestant is a Reference to the use of a Plurality

as Opposed to a Majority to Determine the Winner of an Election.

The BBB(LEGAL) language cited by Contestant in Paragraph #8 is actually a restatement

of Texas Education Code 11.057(a) and (b). Under Texas Education Code 11.057(a) and
11.057(b), the candidate who receives a plurality of the votes is the winner of the election unless
the Board has adopted a resolution that requires the winner to receive a majority of the votes cast
pursuant to 11.057(c). Accordingly, unless a 11.057(c) is adopted, school board elections do
not result in runoffs to determine a winner, no matter how many candidates have signed up for the
trustee position.
The Daingerfield Lone Star ISD properly followed the provisions of Texas Education
Code 11.057(a) at the May 7, 2016 Board election. This is demonstrated by the results of the
race for At-Large, Position 3, which involved three different candidates. Marie Skipper did not
receive the majority of the vote but was the candidate who received the most votes (319 votes
against the second leading candidate who received 272 votes). Contestants Original Petition at
Paragraph #10.
Likewise, Movant Mike Alcorn received the most votes in his race against the Contestant,
so Movant was properly determined to be the winner.
The winners of the May 7, 2016 Daingerfield Lone Star ISD races for the At-Large
positions were properly determined under Texas Education Code 11.057(a).

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3.

The Daingerfield Lone Star ISD Properly Designated the At-Large Seats
by Position for the May 7, 2016 Election.

The Daingerfield Lone Star Independent School District Board of Trustees, on January
19, 2016 called for a May 7, 2016 Board election for single member District 4; and At Large,
Positions 3 and 4. See, Order of Election attached to Exhibit A to this Motion for Summary
Judgment. The At-Large Seats 3 and 4 have been elected by position since at least 1971. See,
Affidavit of Sandra Quarles, Exhibit A to this Motion for Summary Judgment; see also,
Historical Record of Elections for At-Large Positions 3 and 4, attached to Exhibit A to this
Motion for Summary Judgment.
As required by law, the official ballot listed each At-Large seat by position, as ordered by
the Daingerfield Lone Star ISD Board of Trustees. See, Official Ballot attached to Exhibit A
to this Motion for Summary Judgment. There were no errors in the manner in which the election
was conducted. Further, the will of the voters is fully demonstrated by the final canvass of the
vote.
4.

The Election Results Would Have Remained the Same Even if the AtLarge Seats had not been Designated by Position.

Even though the At-Large Daingerfield Lone Star ISD Board of Trustee seats up for
election at the May 7, 2016 Board election were properly designated by position, the results of the
election would have remained the same even had they not be so designated. The Contestants
Original Petition shows the following vote totals in descending order for all candidates for
Positions 3 and 4:
Mike Alcorn
Marie Skipper
Cody Wommack
Ben Terry
Dwayne Staples

349 votes
319 votes
288 votes
272 votes
69 votes

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Therefore, under the provisions of Texas Education Code 11.057(b), even if the two seats
had not been designated by position, Movant Mike Alcorn and Marie Skipper would still have
been elected because they were the two candidates receiving the highest number of votes. Again,
nothing alleged by the Contestant in his Original Petition, even if true, would have resulted in a
different outcome in the election. Additionally, the Contestant has not pleaded and cannot prove
that irregularities by election officials rendered the determination of the true will of the voters
impossible. Prado v. Johnson, 625 S.W.2d 368, 371 (Tex. App. San Antonio 1981).
V.
CONCLUSION
Movant Mike Alcorn is entitled to summary judgment in his favor as a matter of law. The
final canvass of votes for the May 7, 2016 Daingerfield Lone Star ISD Board elections correctly
expressed the true will of the voters, namely that Mr. Mike Alcorn and Ms. Marie Skipper should
be elected to serve as members of the Board of Trustees. The Contestant has failed to plead, and
cannot prove, that any illegal votes were counted or that any election official committed any
wrongdoing or any mistake that would have affected the true outcome of the election. In fact, the
Contestant does not even claim that the true will of the voters was thwarted. Instead, he argues
that if the election for the expiring seats had been held in a different manner, then possibly a
different slate of candidates would have run for office and different people would have been
elected. Contestants Original Petition at Paragraph #14. The Contestants proposition is not the
proper standard for overturning an election under the Texas Election Code. The Contestant is not
asking this Court to determine the true will of the voters, the true will being clearly shown by the
final election results. Instead, he is asking this Court to thwart the demonstrated will of the voters.
Texas courts have routinely held that the provisions of the Texas Election Code should not be used
as an instrument to disenfranchise voters, and yet that is precisely what the Contestant is trying to

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do. The Contestant has not asserted any basis under the law for overturning the results of the May
7, 2016 Daingerfield Lone Star ISD Board elections, and has certainly not asserted any basis for
overturning the results of the At-Large, Position 4 election. This Court should, therefore, rule in
the Movants favor and grant this Motion for Summary Judgment in all respects.
VI.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Movant, Mike Alcorn, prays that this
Honorable Court will grant this Motion for Summary Judgment, dismiss Movant from this lawsuit
with prejudice, will award to Movant such other and further relief to which he may be entitled, at
law or in equity.
Respectfully Submitted,
POWELL & LEON, L.L.P.
1001 ESE Loop 323, Suite 450
Tyler, Texas 75701
Telephone: (903) 526-6618
Fax: (903) 526-5766

By:
V. Jay Youngblood
State Bar of Texas No. 22220200
jyoungblood@powell-leon.com
ATTORNEYS FOR MOVANT

CONTESTEE MIKE ALCORNS MOTION FOR SUMMARY JUDGMENT

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CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Motion for Summary Judgment has been served
on the 14th day of October, 2016 by Certified Mail, Return Receipt Request on the following:
Cody Wommack
220 Haley
Lone Star, Texas 75668
CMRRR # 7015 1520 0000 0126 8147

V. Jay Youngblood

CONTESTEE MIKE ALCORNS MOTION FOR SUMMARY JUDGMENT

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