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The Brownsville Independent School District Board of Trustees is set to follow a 107th state District Court order for a new election in Trustee Minerva M. Pena’s November 2020 election loss to Marisa F. Leal.
The board is to meet at 5:30 p.m. Tuesday to declare Pena’s seat vacant and administer the oath of office to a new trustee if necessary.
The actions are because Pena exhausted all appeals following a trial in Leal’s lawsuit after she lost a recount of the Nov. 8, 2020 school board election to Pena by eight votes, board attorney Nick Maddox said.
Leal initially won the 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 Josue 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, has said.
Pena has continued to serve under holdover provisions in the Texas constitution.
“So all this time it’s been one delay tactic after another,” Hinojosa said in early November. “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 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.”
Board President Jessica G. Gonzalez said she posted the specially called meeting after the Texas Supreme Court rejected an appeal by Pena to overturn her loss to Leal.
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.
Maddox pointed out that BISD was not a party to any of the proceedings between Leal and Pena regarding the election.
That’s between the current incumbent and the candidate from the last election, he said.
“My understanding is last election Trustee Ms. Minerva Pena lost her election. She contested that loss and it went to a trial court that issued a ruling. That ruling was appealed to the fullest extent, and the judge has ruled against Trustee Pena that it was still a loss and ordered a special election to take place May 4 between just those two candidates, the current trustee, Ms. Pena, and the challenger she lost to last election. We’re re-doing the vote between those two candidates last election.”
Maddox said the proceedings are prescribed by the Texas Election Code. He added that Pena has continued to serve as a courtesy by the board to Pena. Only Pena and Leal can be on the May 4 ballot.
“From the school district’s perspective, Trustee Pena’s position has been vacant from the moment she lost the first election as a matter of elections code, and the board is able to fill vacancies, either by appointments or by calling a special election, but because Ms. Pena was contesting it and it was going on and on and on, the board, or the district, gave her the courtesy of not calling a special election and not appointing anybody while she was exhausting her legal remedies,” Maddox said.
“That’s done now, so the district gave her that courtesy, the judge says there is a vacancy, you need a special election and so the board has the option tonight to fill that position if they so choose,” he said.
After the May 4 election, whoever wins will be up for reelection in the November 2024 General Election.
Here’s the latest update:
