Texas Supreme Court rejects appeal by Brownsville ISD trustee Minerva Pena

Minerva M. Peña waves to motorists on Election Day on Nov. 3, 2020, along Alton Gloor Boulevard in Brownsville, Texas. (Miguel Roberts/The Brownsville Herald via AP)
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The Texas Supreme Court has rejected an appeal by Brownsville Independent School District trustee Minerva M. Pena to overturn her November 2020 election loss to Marisa F. Leal.

In a decision handed down Friday, the court declined to review a decision by the 13th Court of Appeals upholding the result of a January 2022 trial in 107th state District Court in which the judge voided the original election and ordered a new one for May 2022.

Leal initially won the Nov. 3, 2020 election by one vote. Pena asked for a recount and prevailed by eight votes, 16,552 to 16,544 for Leal and 10,575 for Joe A. Rodriguez. The vote was canvased, Pena was declared the winner and was sworn in Dec. 9, 2020 to her fourth term on the board.

Leal sued but the case didn’t go to trial until Jan. 6-7, 2022, with San Patricio County state district judge Joshua Johnson presiding because under state law the challenge had to be heard by a judge outside the county where the challenged election took place.

Johnson ruled that 24 illegal votes made it impossible to determine the election’s true winner and ordered a new election for May 7, 2022.

That election never took place because of continual delays, Leal’s attorney Gilberto Hinojosa, of Brownsville, said.

“So all this time it’s been one delay tactic after another,” Hinojosa said Tuesday. “The decision came down almost three years to the day after the election. So now the only time the court can order an election is the date of a uniform election date set by the Legislature. We thought we were going to be able to get the November election but the Supreme Court took a long time to rule on the petition and so now we’ve missed the Nov. 3 deadline, so the next uniform election date is in May of 2024.“

After the trial, Johnson issued a finding that Hinojosa had shown by clear and convincing evidence that 16 voters cast ballots who were registered to vote at an address other than their residence, a commercial warehouse at 225 S. Vermillion Ave. near the Brownsville-South Padre Island International airport.

Hinojosa said under holdover provisions in the Texas constitution “if the election that they were elected in is voided, if they were already serving in that position from a prior election, then they are allowed to remain in office until the governing body replaces them or until there’s a new election.”

He said part of the reason for the delay was the pandemic and Pena’s insistence through her attorney Rick Zayas to have the trial in-person, not via Zoom.

“I mean, you know, people have a right to use the judicial process the way it’s set up,” Hinojosa said, but added that the type of election violations in this case made it clear cut.

“I’ve tried I don’t know over 20 election contests. I’ve only lost one in the trial court and one on appeal. This is one I was positive I was going to win. … Every day since I filed my response to the petition I would check my emails. I thought there was no way they were going to hold onto it. If they would have granted the petition that would have meant they would have requested a full briefing, which they did not.”

Leal said she is glad the decision came out in her favor.

“I guess I’ll just see her at the campaign trails again,” she said Tuesday.

“That position was always mine. Why she was still there is, you know, beyond me. From the first time she lost the appeal they should have taken her down back then. Why she was there for three years I don’t understand. I still don’t understand.”

Asked how she feels knowing that Pena has now served what is approaching a full term, Leal said she feels frustrated.

The BISD Board of Trustees was holding a regularly scheduled meeting at 5:30 p.m. Tuesday.

Although nothing was on the agenda concerning the situation with Pena, board attorney Nick Maddox said board president Jessica G. Gonzalez had asked him to prepare a memorandum concerning the matter for the meeting.