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Click here for the full text of this decision FACTS:Ciro Rodriguez beat Henry Cueller for the Democratic nomination for Congressional District 28 on March 9, 2004 by 145 votes. Cueller called for a recount, which resulted in Cueller being declared the winner by a margin of 203 votes. Rodriguez filed a petition contesting the election on April 14. He claimed there were irregularities in counting early and mail-in boxes in Webb and Zapata Counties. He noted that the net change in votes for those two counties was 347, while the net change in votes for the other nine counties in the district was one. Cueller filed special exceptions, stating Rodriguez had to allege particular irregularities, and a plea to the jurisdiction, stating the Zapata count was correct. The next week, Rodriguez filed a motion to recount the ballots, alleging that 115 more ballots were counted in Webb county from the first court to the recount. Two days later, on April 28, Rodriguez filed his first amended petition, saying that more than 100 people who voted in the election were ineligible. Cueller filed a motion to strike, saying it constituted a new cause of action that would prejudice Cueller. He also filed an amended plea to the jurisdiction, saying the court’s jurisdiction was limited to the recount. The next day, the trial court held a hearing on Cueller’s motions and noted that the trial would be set for May 10 or May 11. Rodriguez filed a second amended petition on May 4, which was also the day the trial court’s hearings ended. The trial court granted Cueller’s motions, striking the allegations made in the first amended petition about the unqualified voters. The trial court also granted Rodriguez’s motion to recount and inspect the ballots. After the recount, Cueller was still determined to be the winner, but this time by only 58 votes. At the May 11 trial, Rodriguez filed for a continuance on the ground that he had not been able to properly inspect all of the ballots, including 90 percent of the ballots in Webb County, because the ballots were not made available for inspection in a timely manner; Cueller’s expert also hindered the inspection process conducted by Rodriguez’s expert. What the expert has inspected yielded 29 irregular ballots. The trial court denied the motion. Based on the granted plea to the jurisdiction and the denial of the continuance, Rodriguez told the court it was unable to proceed and would seek redress on appeal. The trial court, thus, denied the relief Rodriguez sought. HOLDING:Reversed and remanded. The court first considers whether the plea to the jurisdiction should have been granted. Both parties rely on Gateley v. Humphrey, 254 S.W.2d 98 (Tex. 1952), which addressed the effect of statutory amendments, to further their arguments on what effect 1985 amendments to the former Election Code Art. 9.03 have. Rodriguez says the case means that the 1985 amendments that omitted requirements that an election contest include a written statement of the grounds relied on mean that the petition alone is sufficient to invoke the trial court’s jurisdiction. Meanwhile, Cueller says Rodriguez’s case is barred by the 1985 amendments that restricted the ability of people contesting elections from raising a new cause of action prior to the announcement of ready for trial. The court rules that the provisions can be read together: By eliminating the particularized notice requirement contained in Article 9.03 and the liberal amendment provision for primary contests, the Legislature’s intent was to bring the pleading requirements and amendment procedures in election contests under the general rules governing civil cases. As a result, after the 1985 amendments, the filing of a petition in itself is sufficient to invoke the trial court’s jurisdiction. Turning to the motion to strike, the court notes that under Texas .Rule of Civil Procedure 63, a trial court has no discretion to refuse an amendment filed within seven days of trial unless the opposing party presents evidence of surprise or prejudice, or unless the amendment asserts a new cause of action, which would be prejudicial on its face, and the opposing party objects. The trial court’s ruling in this case was that the amendment alleged a new cause of action, and was thus prejudicial on its face. The court disagrees that the grounds stated in the second amended petition were a new cause of action. Rodriguez’s original petition contained a general allegation relating to irregularities in the casting of ballots. The requested amendment did not inject a new cause of action but simply attempted to further define this general allegation or to elaborate on the cause of action already asserted by providing more specific detail regarding the types of irregularities. Because there was not a new cause of action, Cueller had the burden to create a record demonstrating that the amendment resulted in surprise or prejudice. The court concludes that the record does not reflect surprise or prejudice, noting that Cueller’s attorney was aware that he had information regarding illegal votes prior to the requested amendment. “Because we have determined that Rodriguez had a live pleading raising the claim with regard to the unqualified voters in his original petition, and this claim was not stricken by the trial court, Rodriguez had a live pleading with regard to his unqualified voter claim at the commencement of trial. Assuming Rodriguez was required to make an offer of proof showing the substance of the evidence excluded as result of the trial court’s ruling striking the pleading, . . . Rodriguez satisfied this requirement.” The court rejects Cueller’s reference to Bush v. Gore in 2000. A problem confronted in that case was that there was a lack of specific standards for ascertaining a voter’s intent. Texas has procedures in place. Under Election Code ��221.011 and 221.012, for example, in order to determine the true outcome of an election, the trial court shall subtract any illegal votes from the official total for the candidate for whom the illegal votes were cast, and if the trial court cannot ascertain the true outcome of the election, the election must be declared void. Finally, the court considers the trial court’s denial of Rodriguez’s motion for continuance. The affidavit filed in support of the motion was proper, despite Cueller’s assertion otherwise, and because hearsay information was not objected to at the hearing, the court considers that testimony, too. Nonetheless, since the recount was completed despite the shortened schedule, based on the representations that were made, the inspection should also have been completed. The trial court did not abuse its discretion in denying the motion for continuance or trial recess. OPINION:Lopez, C.J.; Lopez, C.J., Stone and Green, JJ. DISSENT:Green, J. “The decisive question in this appeal is whether the trial court abused its discretion by striking Rodriguez’s amended petition that introduced new substantive matter to the case shortly before trial. The question answers itself. It is so well established as to be virtually axiomatic that trial courts are vested with wide discretion to disallow late filed pleading amendments that operate to surprise the opposite party or would otherwise unnecessarily delay a trial of the case. Curiously, however, the majority disregards this widely recognized principle and instead resorts to flipping the proper burden of proof on appeal to achieve its erroneous conclusion.”

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