Brownsville ISD declares seat vacant, names new trustee

Dec. 20—Only have a minute? Listen instead

The Brownsville Independent School District Board of Trustees on Tuesday declared Minerva M. Pena's seat vacant and appointed Tim Ramirez to fill it until May, when a special election is scheduled to determine the true winner of the disputed November 2020 school board race between Pena and Marisa F. Leal.

The developments came after after Pena exhausted all appeals following a January 2022 trial in the 107th state District Court of Leal's lawsuit after she lost a recount of the Nov. 8, 2020 school board election to Pena by eight votes.

The Texas Supreme Court on Nov. 10 declined to consider Pena's third appeal, and let stand the court's decision in the case.

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 16 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, in part because of the pandemic and due to repeated delays by Pena, Leal's attorney Gilberto Hinojosa of Brownsville said at the time

On Tuesday, Board Attorney Nick Maddox said BISD is not a party to the challenges and appeals but that the Supreme Court's Nov. 10 decision brought finality to the case. He said BISD is rightly following the Supreme Court's directive that the lower court's decision stands.

"We're simply bystanders waiting to be told by a judicial order what we can and cannot do. That judicial order came down, and again there's finality there. So now that the judicial challenges are done the option that has always been before the board about this vacant position, the holdover position, has now become a local question. ... The vacancy already exists by judicial order, which is final, cannot be appealed, and by the nature of the elections code ... it is vacant, it is holdover," Maddox said

Board President Jessica G. Gonzalez then moved to approve the first item on the agenda, to declare Pena's seat vacant.

Discussion ensued, during which board member Carlos Elizondo questioned the board's authority to declare the vacancy and Pena said she could remain on the board under holdover provisions in the Texas constitution.

"You keep saying Ms. Pena lost the election. At no point do you say there was a recount and Ms. Pena won the election when the recount came. ... The judge only ordered a new election. Nowhere in that does the judge order to vacate the seat ... so I could continue here until the election in May. It's heartbreaking that I was sued and the district is going to have to pay $80,000 for a new election and then we have to do it again in November. That's heartbreaking to me. ... Under the holdover I could be allowed to stay here and continue my seat because of the fact I'm waiting for the new election," Pena said.

Maddox said the seat became vacant the moment Pena lost the election. He said she has continued to serve as a courtesy by the board pending the outcome of the appeals.

After the meeting Leal and her husband Luis Leal, a 30 year-plus teacher at Stillman Middle School, said the fact the May special election will fall so close to the November 2024 General Election is Pena's fault for having waited to the last minute before the deadline to file each of her appeals, resulting in the Supreme Court's decision coming down later than would have been necessary.

They said BISD would have had to have the special election in any case because Pena lost at trial and the judge ordered a special election to determine the November 2020 election's true winner.

Except for the delay tactics, the special election would have taken place in May 2022, Hinojosa said.

After the January 2022 trial in 107th state District Court, Judge 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.

As Tuesday's meeting concluded, Cameron County District Judge Adolfo Cordova swore in Ramirez, a retired former BISD teacher who ran for the board in 2018 and later became an advocate for the BISD community.

Whoever wins the May special election will serve until November 2024 when the seat and several others are up for reelection in school board elections to be held in conjunction with the November General Election.