Howard HILL, Petitioner, v. Ronnie MILLER, Respondent, 714 S.W.2d 313

CAMPBELL, Justice. This is an appeal of an election contest for the office of sheriff of Brazos County. The trial court found that illegal votes of sufficient number to change the outcome had been cast and declared the election void. The court of appeals reversed the judgment of the trial court and rendered a take-nothing judgment against the contestant, Howard Hill, holding that Hill had failed to prove illegality or fraud in the contested election. 698 S.W.2d 372.

The court concluded that evidence of the number of illegal votes cast in the general election was not evidence of the number of illegal votes cast in the contested election for county sheriff. This is an election contest for a local office, and we must first consider the question of our jurisdiction.

The judgment of the court of appeals is conclusive in an election contest unless (1) the contest concerns a statewide office, Tex.Gov’t Code Ann. § 22.225(b)(4) (Vernon 1986); (2) the validity of a statute is questioned by the decision, Id.; (8) a justice in the court of appeals dissents on a material question of law, Tex.Gov’t Code Ann. §§ 22.225(

c) and 22.001(a)(1) (Vernon 1986); or (4) a conflict exists between the opinion of the court of appeals and a prior opinion of another court of appeals or the Supreme Court. Tex.Gov’t Code Ann. §§ 22.225(

c) and 22.-001(a)(2) (Vernon 1986). Hill argues that we have jurisdiction over this election contest because “the validity of a statute is questioned by the decision” of the court of appeals. Tex.Gov’t Code Ann. § 22.-225(b)(4) (Vernon 1986). Hill, however, does not argue a point of error on the validity of any statute. Instead, he relies on a point of error raised in the court of appeals by his opponent, Ronnie Miller. That court found it unnecessary to address Miller’s point challenging the constitutionality of a statute because it held for Miller on other grounds.

Hill, nevertheless, contends that a holding on the point is not necessary because the mere allegation that a statute is unconstitutional serves as a predicate for this court’s jurisdiction in an election contest. We disagree. Although it is not essential that a court of appeals hold a statute unconstitutional before our jurisdiction attaches, the point of error challenging the statute must be material to a holding of the court of appeals and preserved for review in this court. Christy v. Williams, 156 Tex. 555, 298 S.W.2d 565, 567 (1957); Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625, 626-27 (1948).

This normally will occur in one of two ways. The appellant in the court of appeals will ordinarily be the party to raise a point of error challenging the validity of some statute applied by the trial court. If the court of appeals rejects the challenge and affirms the judgment of the trial court, the appellant must preserve the point in his motion for rehearing and present the point by proper assignment in this court.

If, on the other hand, the court of appeals agrees with appellant that the statute is invalid, it is the appellee who must preserve error by challenging the holding in a motion for rehearing and by presenting the point to this court in an application. In either instance, there must be a point of error in the motion for rehearing referable to the validity or invalidity of the statute followed by a point of error in this court. Hill has never challenged the validity of any statute. He only argues that the court of appeals has misconstrued the requirements of Tex.Elec.Code Ann. § 9.38b (Vernon 1986).

Construction or application of a statute will not put in issue the “validity” of a statute for purposes of our jurisdiction in an election contest. Christy v. Williams, 298 S.W.2d at 567. Because the validity of a statute is not at issue, Hill’s allegation under § 22.225(b)(4) of the Government Code does not invoke our jurisdiction in this election contest. As an additional basis for jurisdiction, Hill argues that the present opinion of the court of appeals conflicts with Deffebach v. Chapel Hill Independent School District, 650 S.W.2d 510 (Tex.App.—Tyler 1983, no writ) and Goodman v.

Wise, 620 S.W.2d 857 (Tex.Civ.App.—Corpus Christi 1981, writ ref d n.r.e.). When the jurisdiction of this court depends upon a conflict of decisions, the conflict must be apparent from the face of the opinions, must relate to a question of law, and must concern essentially the same state of facts so that the decision in one case is conclusive of the decision in the other. Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex.1978); Torrez v. Maryland Casualty Co., 363 S.W.2d 235, 236 (Tex.1963). The two cases cited here for conflict do not meet these requirements.

In this case, the trial court declared the election void after determining that more illegal votes were cast in the general election than the margin of victory in the race for county sheriff. The court of appeals reversed the judgment of the trial court holding that it was not sufficient to show the number of illegal votes cast in the general election. Instead, the court of appeals held it was the contestant Hill’s burden in a multi-race election to show that the number of illegal votes actually cast in the contested race for county sheriff was greater than the margin of victory in that specific race.

Deffebach and Goodman are distinguishable because the ballot in those cases involved a single race or issue — a school bond election in Deffebach and a city commissioner’s election in Goodman. Therefore, unlike the present case, the illegal voting unquestionably occurred in the election being contested. This court does not have jurisdiction over this election contest. We express no opinion on the merits, but reserve construction of the Election Code and the issues addressed by the court of appeals for determination in the proper case.

Our previous order granting Howard Hill’s application for writ of error is withdrawn, and the application for writ of error is dismissed for want of jurisdiction. KILGARLIN, J., files a dissenting opinion in which SPEARS and RAY, JJ., join.