Pressley v. Casar (567 S.W.3d 28, 2016)

Court of Appeals of Texas, Austin 2016-12-23

Citations

Full opinion text

Melissa Goodwin, Justice

In these related appeals, Laura Pressley and her former attorney, David Rogers, appeal the trial court's judgment in Pressley's election contest against Gregorio "Greg" Casar declaring Casar the winner in the December 16, 2014 runoff election for Austin City Council District 4 and awarding sanctions against Pressley and Rogers under Chapter 10 of the Texas Civil Practice and Remedies Code. See Tex. Elec. Code § 221.012(a) ; Tex. Civ. Prac. & Rem. Code §§ 10.001 -.006.

BACKGROUND

Pressley and Casar were among eight candidates for District 4 in the November 4, 2014 general election, the first under Austin's "10-1" council structure. Casar received the most votes, and Pressley finished second. A runoff election was held on December 16, 2014, in which Casar received 64.61% of the vote to Pressley's 35.39%, representing a difference of 1,291 votes. Pressley subsequently raised a number of questions concerning the election with Travis County Clerk Dana DeBeauvoir and ultimately filed a petition for recount with the Texas Secretary of State, requesting a manual recount. See Tex. Elec. Code § 212.001. On January 6, 2015, Travis County conducted a manual recount of all ballots cast in the runoff election. Jay Brim, Chair of the Recount Committee, and DeBeauvoir supervised the recount. A representative of the Secretary of State was also present to observe the recount.

Of the 4,417 votes cast in the runoff election, 480 were cast by mail, and 3,937 were cast electronically. Travis County uses the Hart Intercivic eSlate System, an electronic voting system certified by the Secretary of State for use in elections and used by the County since approximately 2003. See id. §§ 122.001 (prescribing voting system standards), .031 (providing that Secretary of State must certify voting system before it may be used in election); 1 Tex. Admin. Code § 81.61 (2016) (Office of the Secretary of State, Conditions for Approval of Electronic Voting Systems) (requiring that voting systems meet or exceed minimum requirement established by Federal Election Commission); see also Andrade v. NAACP of Austin , 345 S.W.3d 1, 4 (Tex. 2011) (explaining procedure under Chapter 122 of Election Code for certification of voting system by Secretary of State and adoption of system for use by political subdivision).

The Hart eSlate System is a paperless direct recording electronic machine (DRE), which is "a voting machine that is designed to allow a direct vote on the machine by the manual touch of a screen, monitor, or other device and that records the individual votes and vote totals electronically." See Tex. Elec. Code §§ 121.003(12), 129.001 -.057 (setting out specific provisions relating to DREs). "DREs store individual votes and vote totals electronically, usually in several places within the unit." Andrade , 345 S.W.3d at 4 (internal citation omitted). Upon receipt of a DRE system from the vendor, the custodian of election records must perform additional testing, including hardware diagnostic, logic and accuracy, and security testing. See Tex. Elec. Code §§ 129.021 -.024; see also Andrade , 345 S.W.3d at 4 (describing required testing of DRE system by custodian). In addition, in countywide polling place programs, the Secretary of State requires an audit of each DRE before, after, and if practicable, during each election. See Tex. Elec. Code § 43.007(c). The custodian must also create and maintain procedures for inventory, storage, and transport of and access to the DRE equipment. See id. §§ 129.051-.053; see also Andrade , 345 S.W.3d at 5 (describing requirement of secure access). A DRE may not be connected to any external communication device, such as the Internet, or have wireless capabilities, with limited exceptions, and the custodian must create a contingency plan in case of a DRE failure. See Tex. Elec. Code §§ 129.054, .056; see also Andrade , 345 S.W.3d at 5 (noting requirements regarding external communications and contingency plan). "Although DREs must provide contemporaneous printouts of 'significant election events,' there is no explicit statutory requirement that DREs provide a contemporaneous paper record of each vote cast," despite "repeated efforts to pass such legislation." Andrade , 345 S.W.3d at 5 & n.4 (quoting 1 Tex. Admin. Code § 81.62(a), (b) (2016) (Office of the Secretary of State, Continuous Feed Printer Dedicated to the Central Accumulator Audit Log) (requiring real-time audit log of significant events, defined to include error messages and users logging in and out) ).

A voter using the eSlate makes his choices by pressing a button to mark boxes next to the name of his chosen candidate in each race. The final screen of the electronic ballot is a list of the races on the ballot with the name of the candidate chosen by the voter (or an indication that no candidate was chosen) for each race. See Tex. Elec. Code § 129.002(a) (requiring DREs to provide voter with summary screen before vote is cast). The voter then confirms his vote by pressing the "CAST BALLOT" button. After the voter casts his ballot, the eSlate electronically stores an individual "cast vote record" (CVR), reflecting the votes as shown on the final summary screen before the voter cast his vote. For the manual recount in this case, the CVR for each voter was printed and counted by hand. Pressley and her chosen poll watchers witnessed the printing of the CVRs and manual recount. See id. §§ 213.013(h) (authorizing candidate and poll watchers to observe recount activity), .016 (providing that each candidate and her poll watchers are entitled to be present during printing of images of ballots cast using DRE voting machines for purposes of recount). According to recount committee chair Brim, the result of the manual recount was that the totals of all precincts matched those in the original canvass, the number of voters matched the number of ballots cast, and the results of the election remained the same. After the recount, Pressley filed several complaints with the Secretary of State. The Secretary of State concluded that "the scope of the recount was conducted properly"; explained the statutory scope of a recount; informed Pressley that challenges based on irregularities, fraud, or mistake are properly made in an election contest; and dismissed Pressley's complaints.

Pressley then filed this election contest against Casar arguing that the eSlate's storage of CVRs does not comply with Election Code requirements because CVRs do not constitute "ballot images" or "images of ballots cast." See id. §§ 128.001(a)(2) (requiring that Secretary of State's procedures for use of electronic voting machines must provide for use of system with "main computer to coordinate ballot presentation, vote selection, ballot image storage, and result tabulation"), 213.016 (specifying who may be present during printing of images of ballots cast using DREs for purposes of recount), 232.001-.016 (providing for trial and disposition of election contest). She also asserted allegations of voter disenfranchisement, election irregularities, and criminal violations by election officials. The parties engaged in substantial discovery, including the depositions of Pressley and DeBeauvoir. Casar filed a traditional motion for summary judgment, a no-evidence motion for summary judgment, and a motion for sanctions under Chapter 10 of the Civil Practice and Remedies Code against both Pressley and Rogers, based on certain repeated allegations asserted through Pressley's Sixth Amended Contest. See Tex. Civ. Prac. & Rem. Code §§ 10.001 -.006. After a hearing on Casar's summary judgment motions, the trial court granted his no-evidence motion for summary judgment. The trial court subsequently held a two-day hearing on Casar's motion for sanctions. The trial court granted the motion and awarded monetary sanctions against Pressley in the amount of $40,000 and against Rogers in the amount of $50,000, as well as contingent attorney's fees in the event of an unsuccessful appeal. The trial court also ordered that Pressley and Rogers were to be jointly and severally liable to Casar for expenses of $7,794.44. Incident to its order, the trial court entered findings of fact and conclusions of law and, at Pressley's request, entered amended findings of fact and conclusions of law. The trial court then signed an amended final judgment incorporating the terms of its orders granting summary judgment and sanctions. These appeals followed.

APPLICABLE LAW AND STANDARD OF REVIEW

In an election contest, the scope of inquiry by the trial court is limited. The Election Code provides:

a) The tribunal hearing an election contest shall attempt to ascertain whether the outcome of the contested election, as shown by the final canvass, is not the true outcome because:

(1) illegal votes were counted; or

(2) an election officer or other person officially in the administration of the election:

(A) prevented eligible voters from voting;

(B) failed to count legal votes; or

(C) engaged in other fraud or illegal conduct or made a mistake.

(b) In this title, "illegal vote" means a vote that is not legally countable.

(c) This section does not limit a provision of this code or another statute expanding the scope of inquiry in an election contest.

Tex. Elec. Code § 221.003. A contestant must prove by clear and convincing evidence that a violation of the Election Code occurred and that it materially affected the outcome of the election. Woods v. Legg , 363 S.W.3d 710, 713 (Tex. App.-Houston [1st Dist.] 2011, no pet.) ; Honts v. Shaw , 975 S.W.2d 816, 822 (Tex. App.-Austin 1998, no pet.). The outcome of an election is "materially affected" when a different and correct result would have been achieved in the absence of the violation. Woods , 363 S.W.3d at 713 ; Willet v. Cole , 249 S.W.3d 585, 589 (Tex. App.-Waco 2008, no pet.). Clear and convincing evidence is that which produces in the factfinder a "firm belief or conviction" as to the truth of the allegations. In re Lipsky , 460 S.W.3d 579, 589 (Tex. 2015) ; Woods , 363 S.W.3d at 713. An election contestant's burden is a heavy one, and the declared result will be upheld unless there is clear and convincing evidence of an erroneous result. Willet , 249 S.W.3d at 589 ; Barrera v. Garcia , No. 04-12-00469-CV, 2012 WL 4096021, at *2, 2012 Tex. App. LEXIS 7899, at *4 (Tex. App.-San Antonio Sept. 19, 2012, no pet.) (mem. op.).

We review a trial court's summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). A movant seeking a no-evidence summary judgment motion must assert that there is no evidence to support an essential element of the nonmovant's claim on which the nonmovant would have the burden at trial. See Tex. R. Civ. P. 166a(i) ; Hahn v. Love , 321 S.W.3d 517, 523-24 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). Once the motion is filed, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements challenged in the motion. Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006). When reviewing a summary judgment, we must take evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant's favor. Id. ; Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence motion should be granted when " '(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.' " Southwestern Bell Tel., L.P. v. Emmett , 459 S.W.3d 578, 589 (Tex. 2015) (quoting King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003) ).

Pressley's and Rogers' issues also involve statutory construction, which is a question of law that we review de novo. See Railroad Comm'n v. Texas Citizens for a Safe Future & Clean Water , 336 S.W.3d 619, 624 (Tex. 2011). Our primary concern is the express statutory language. See Galbraith Eng'g Consultants, Inc. v. Pochucha , 290 S.W.3d 863, 867 (Tex. 2009). We apply the plain meaning of the text unless a different meaning is supplied by legislative definition or is apparent from the context, unless the plain meaning leads to absurd results, or unless technical terms are used. See Tex. Gov't Code § 311.011(b) ("Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."); Marks v. St. Luke's Episcopal Hosp. , 319 S.W.3d 658, 663 (Tex. 2010) ; In re E.C. , 444 S.W.3d 760, 765 (Tex. App.-Fort Worth 2014, no pet.).

Pressley's and Rogers' Issues

Pressley and Rogers assert two primary erroneous rulings by the trial court: its ruling on Casar's no-evidence motion for summary judgment and its sanction award.

In her first issue, Pressley challenges the summary judgment in favor of Casar, asserting three sub-issues. In his fifth issue, Rogers adopts and incorporates by reference the factual recitations, citations to the record and to authority, and arguments contained in Pressley's first issue. In her second issue, Pressley challenges the trial court's award of sanctions against her, asserting four sub-issues. In his first through fourth and sixth issues, Rogers challenges the trial court's award of sanctions against him. In his fourth and sixth issues, he adopts and incorporates by reference the factual recitations, citations to the record and to authority, and arguments contained in Pressley's second issue, with the exception of her argument concerning the third factor under Low v. Henry , 221 S.W.3d. 609, 621 n.5 (Tex. 2007), discussed below. In his first through third issues, Rogers asserts independent arguments and authority. We turn now to Pressley's and Rogers' issues.

Discovery from Travis County

In sub-issue one of Pressley's first issue and in sub-issue one of Rogers' fifth issue, Pressley and Rogers argue that the trial court committed reversible error in holding that nonparty Travis County was not required to provide Pressley access to eSlate information designated as proprietary in Travis County's contracts with Hart. Pressley included in her original, first amended, and second amended petitions a request for production directed to nonparty Travis County. She omitted the request from her third amended petition and served a Notice of Request for Production on Travis County. Pressley did not obtain a court order or serve a subpoena on Travis County, as is required for obtaining discovery from a nonparty. See Tex. R. Civ. P. 205.1. Nonetheless, Travis County agreed to provide relevant, non-privileged documents in its possession and sought a protective order seeking to limit the scope of discovery. The trial court entered a third-party discovery control plan allowing substantial discovery, but with some limitations. Concerning production of information that Travis County maintained was proprietary, the order provided that Travis County was to produce its contracts with Hart that prohibited Travis County from disclosing certain information, which formed the basis of the County's objections. Pressley and Rogers did not object to the entry of the order.

Travis County produced numerous documents, including its contracts with Hart and a number of manuals, and attached a privilege log listing certain withheld proprietary information. Although it did not produce the eSlate manual, a Travis County representative later stated on the record that it had produced all of the manuals in its possession. Subsequently, Travis County filed a second motion for protective order and, on the same day, Pressley filed a motion to compel discovery. Pressley complained that Travis County had produced no evidence of claimed privileges and had withheld documents not claimed as privileged. Travis County argued that Pressley continued to seek discovery outside the scope of the trial court's prior discovery order. Central to the discovery dispute was production of the eSlate manual and Pressley's access to various pieces of eSlate equipment "to examine them to determine if they were functioning properly." Pressley's motion to compel discovery was heard at the same hearing as Casar's motions for summary judgment. The trial court granted Casar's no-evidence motion for summary judgment after addressing, but not ruling on, Pressley's motion to compel discovery.

Although Pressley and Rogers complain on appeal of the trial court's third party discovery order, which allowed Travis County to withhold what it considered proprietary information and to provide copies of its contracts with Hart as evidence of the basis for withholding information, Pressley did not object to the entry of that order. Rather, she later filed a motion to compel discovery seeking withheld and "missing" documents. However, when the trial court granted Casar's motion for summary judgment, Pressley did not obtain a ruling or object to the trial court's failure to rule on her motion to compel discovery. Nor did Pressley seek a continuance of the trial court's ruling on the summary judgment motion until it had ruled on her motion to compel discovery. In fact, Pressley's counsel, Mark Cohen, expressly stated, "We will not let this discovery be a cause for continuing the trial."

Pressley and Rogers do not contend that the trial court expressly ruled on the motion to compel discovery but argue that by granting summary judgment without "requiring the Clerk [DeBeauvoir] to get the manual and produce it before ruling on the Motion for Summary Judgment," the trial court "in effect den[ied] the Motion to Compel." However, "[t]he granting of the motion for summary judgment does not necessarily implicitly overrule motions or objections." Wilson v. Thomason Funeral Home, Inc. , No. 03-02-00774-CV, 2003 WL 21706065, at *4, 2003 Tex. App. LEXIS 6358, at *11 (Tex. App.-Austin July 24, 2003, no pet.) (mem. op.). Thus, the trial court's ruling on Casar's no-evidence motion for summary judgment did not amount to an implicit denial of Pressley's motion to compel discovery.

Pressley and Rogers also argue that the trial court "cut off the opportunity and obligations on the Clerk [DeBeauvoir] and its own obligation, with respect to the Motion to Compel, by abruptly changing course and granting the No Evidence Motion for Summary Judgment...." They argue that Pressley objected and pointed this error out to the court, citing to a question Pressley's counsel, Cohen, asked the court: "So are you refusing to order [Travis County] to turn over the eSlate manual?" However, Cohen's question to the court challenged the trial court's statements that it considered the request for the eSlate manual moot because Travis County had complied with the trial court's previous order to turn over manuals in its possession and the County could not produce things not in its possession. Thus, Cohen questioned the trial court's indication of how it intended to rule on one aspect of Pressley's multi-faceted motion to compel discovery; he did not request a ruling on the motion to compel or object to the trial court's failure to rule on the motion. To preserve a complaint for review, a party must timely present it to the trial court with the specific grounds and obtain a ruling or object to the trial court's refusal to rule. Tex. R. App. P. 33.1(a) ; Magnuson v. Mullen , 65 S.W.3d 815, 829 (Tex. App.-Fort Worth 2002, pet. denied) ("If a party fails to [object], error is not preserved, and the complaint is waived.") (citing Bushell v. Dean , 803 S.W.2d 711, 712 (Tex. 1991) (per curiam) ); Mark Prods. U.S., Inc. v. Interfirst Bank Hous., N.A. , 737 S.W.2d 389, 396 (Tex. App.-Houston [14th Dist.] 1987, writ denied) (holding that appellant waived complaint that trial court failed to compel discovery responses where motion to compel was pending at time of summary judgment hearing and appellant did not obtain ruling on motion or request continuance of summary judgment hearing so that trial court could rule on motion).

Having failed to object to the entry of the third party discovery order, Pressley and Rogers have waived their complaint on appeal as to that order. See Tex. R. App. P. 33.1(a) ; Magnuson , 65 S.W.3d at 829. Further, because they also failed to obtain a ruling on Pressley's motion to compel or to seek a continuance on the trial court's ruling on Casar's motions for summary judgment, to the extent Pressley's and Rogers' argument can be construed as a challenge to the trial court's failure to rule on the motion to compel discovery, they have not preserved that issue for appeal. We overrule sub-issue one of Pressley's first issue and sub-issue one of Roger's fifth issue. See Tex. R. App. P. 33.1(a) ; Mark Prods. , 737 S.W.2d at 396.

Trial Court's Review of Summary Judgment Evidence

In sub-issue two of Pressley's first issue and in sub-issue 2 of Rogers' fifth issue, Pressley and Rogers contend that the trial court committed reversible error by granting Casar's no-evidence motion for summary judgment without reviewing the evidence. We do not find this argument persuasive on the facts before us. Pressley and Rogers appear to base their argument on the trial court's statement that it did not read every page of the summary judgment evidence because "there were too many pages." However, the record reflects that the trial court stated that it had read all of the pleadings, including those filed the morning of the hearing, and "tagged" them, and it specifically mentioned reading Pressley's expert report. Moreover, the trial court stated that it had read the evidence referred to by the parties in the pleadings. "[A] party submitting summary judgment evidence 'must specifically identify the supporting proof on file that it seeks to have considered by the trial court.' " Nguyen v. Allstate Ins. Co. , 404 S.W.3d 770, 776 (Tex. App.-Dallas 2013, pet. denied) (quoting Arredondo v. Rodriguez , 198 S.W.3d 236, 238 (Tex. App.-San Antonio 2006, no pet.) ). "A general reference to a voluminous record that does not direct the trial court and parties to evidence relied upon is insufficient." Brookshire Katy Drainage Dist. v. Lily Gardens, LLC , 333 S.W.3d 301, 308 (Tex. App.-Houston [1st Dist.] 2010, pet. denied). "In the absence of any guidance from the non-movant where the evidence can be found, the trial court is not required to sift through voluminous [evidence] in search of evidence to support the non-movant's argument that a fact issue exists." Nguyen , 404 S.W.3d at 776 (quoting Aguilar v. Morales , 162 S.W.3d 825, 838 (Tex. App.-El Paso 2005, pet. denied) ). Because the record reflects that the trial court reviewed the evidence cited by the parties, as well as the pleadings and certain specific evidence, we conclude that Pressley's and Rogers' argument that the trial court committed error by granting summary judgment "without even reading the evidence" is without merit. Further, to the extent the trial court failed to read all of the evidence, any such error is harmless in light of our conclusion below that summary judgment was appropriate. See Tex. R. App. P. 44.1(a)(1) (providing that for error to be reversible, it must have probably caused the rendition of an improper judgment). We overrule sub-issue two of Pressley's first issue and sub-issue two of Rogers' fifth issue.

Summary Judgment

In sub-issue three of Pressley's first issue and in sub-issue three of Rogers' fifth issue, Pressley and Rogers argue that the trial court erred in granting Casar's no-evidence motion for summary judgment because Pressley produced more than a scintilla of evidence to create a fact issue as to whether the declared result of the election was the true outcome. See Tex. Elec. Code § 221.003(a) (defining scope of inquiry in election contest). They challenge whether Debeauvoir complied with the Election Code's requirement to maintain "ballot images" and contend there were a number of "irregularities." We address these arguments in turn.

Ballot Images

Pressley and Rogers first argue that DeBeauvoir failed to maintain "ballot images" and print them for the election recount as required by the Election Code. Section 128.001 requires that the Secretary of State prescribe procedures to allow for the use of computerized voting systems and that the systems, among other things, have "a main computer to coordinate ballot presentation, vote selection, ballot image storage, and result tabulation." Id. § 128.001(a)(2). Section 213.016 refers to the printing of "images of ballots cast" for purposes of recount. Id. § 213.016. "Ballot image," "ballot image storage," and "images of ballots cast" are not defined in the Election Code. Pressley and Rogers maintain that construing the term "ballot image" according to common usage, it must mean a picture, reproduction, optical counterpart, visual representation, or exact likeness of the ballot cast. Therefore, they contend, a CVR, which reflects the votes as shown on the final summary screen before the voter casts his vote, is not a ballot image because it is not a picture, reproduction, or exact likeness of the screen on which a voter marks the box next to the name of his chosen candidate in each race. Pressley and Rogers also argue that CVRs cannot be ballot images because they do not have the elements of a ballot required by the Texas Constitution and the Election Code. See Tex. Const. art. VI, § 4 (providing that vote shall be by ballot and that legislature shall provide for numbering of tickets); Tex. Elec. Code §§ 52.003 (providing that name of each candidate be placed on ballot), .031 (prescribing form of name placed on ballot), .062 (requiring ballot to be numbered), .063 (requiring designation of election and date on each ballot), .064 (stating that words "OFFICIAL BALLOT" must be printed on each ballot), .070 (providing that voting square and instruction be placed on each ballot). They also argue that there is a fact issue as to the authority of the Secretary of State to define "CVR" as synonymous with "ballot image."

In support of their argument, Pressley and Rogers rely on the "declaration" of Jeffrey Jacobson, Ph.D., Pressley's computer science expert witness, who stated that a CVR cannot be a ballot image because it is a data structure, which is a table or list of information, not an image file, which is a grid of pixels, and because a CVR is never large enough to hold an entire ballot image. Jacobson cited the Federal Election Commission's (FEC's) 1990 Performance and Testing Standard for Punch Card, Mark Sense, and Direct Recording Electronic Voting Systems and stated that "to the extent the FEC discuss[ed] what would later be known as 'cast vote records,' the FEC distinguishe[d] [CVRs] from ballot images." Pressley and Rogers also rely on DeBeauvoir's testimony that the CVR is a stored image of the final summary screen a voter sees before he casts his vote, and not of each screen on which a voter marks the box by the name of his chosen candidate. In support of their argument that DeBeauvoir has failed to comply with the law, they cite evidence that the Hart Voting System is capable of formatting ballot images, i.e., evidence that the eSlate formats a ballot meeting statutory requirements that the voter is shown when deciding for whom to vote and that the Hart Ballot Now System, used for voting by mail, scans each paper ballot to create an exact digital image of the ballot. Based on this evidence, Pressley and Rogers argue that because the legally required ballot images are "missing," the only legal ballots are the mail-in ballots. Consequently, they contend, the recount should have been based only on the mail-in ballots, making the true outcome of the election a tie and authorizing the ordering of a new election. See id. §§ 221.001, .012 (authorizing court to declare outcome if it can ascertain true outcome).

We do not find these arguments persuasive. Initially, we observe that the CVR is an image of the screen that the voter sees when he presses the "CAST BALLOT" button. In that sense, the CVR is an image of the ballot a voter casts on the eSlate. Further, we disagree with Pressley and Rogers that we must apply the rule of "common usage" and conclude that a "ballot image" must be a picture or exact likeness of the screen on which the voter decides how to vote. Nor do we find the opinion of Pressley's expert that a CVR, as a data file, cannot be a ballot image to be determinative. Rather, we must apply the technical meaning the term has acquired as used by agencies in charge of election matters. See Tex. Gov't Code § 311.011 ; In re E.C. , 444 S.W.3d at 765. Texas election law does not define "ballot image storage" to require a picture or pixelated copy of an entire ballot, as Pressley and Rogers urge. Rather, federal, state, and local agencies that oversee elections all agree that, under the current state of the law, a CVR is equivalent to a ballot image. The Secretary of State defines a "Ballot Image" as an "Electronically produced record of all votes cast by a single voter," and defines a "Cast Vote Record (CVR)" as a "[p]ermanent record of all votes produced by a single voter whether in electronic or paper copy form. Also referred to as ballot image when used to refer to electronic ballots." The U.S. Election Assistance Commission (EAC) uses this same language and indicates that the words can be used interchangeably. It defines "ballot image" as an "[e]lectronically produced record of all votes cast by a single voter" and adds, "See also: cast vote record." See Glossary of Key Election Terminology , English to Spanish, 2007, U.S. Elections Commission (2007). The EAC defines "cast vote record" as the "[p]ermanent record of all votes produced by a single voter whether in electronic, paper or other form. Also referred to as ballot image when used to refer to electronic ballots." See id. DeBeauvoir testified that a CVR and a ballot image are "the same thing," that her interpretation of the terms is consistent with that of the Secretary of State and the EAC, that she had worked with that definition since late 2003 as a member of the EAC Board of Standards that developed the EAC election standards, and that it is the standard meaning of the term across the United States.

Further, the Secretary of State has certified the Hart eSlate system, which stores CVRs rather than each page on which a voter makes his selection, and, significantly, the Texas Supreme Court has upheld his discretion to do so. In Andrade , the Supreme Court addressed complaints that the eSlate does not produce a contemporaneous paper record of each vote. 345 S.W.3d at 4. In rejecting an equal protection challenge to the use of the eSlate, the court noted that "DREs are not perfect. No voting system is" but concluded that "[t]he Secretary made a reasonable, nondiscriminatory choice to certify the eSlate, a decision justified by the State's important regulatory interests. '[N]othing in the constitution forbids that choice.' " Id. at 14 (quoting Weber v. Shelley , 347 F.3d 1101, 1107 (9th Cir. 2003) ). The Election Code prescribes certain minimum standards for voting systems, authorizes the Secretary of State to prescribe additional standards, and gives the Secretary of State the ultimate authority to determine whether a particular voting system meets those standards. See Tex. Elec. Code §§ 122.001 (setting out standards and in subsection (c) providing that Secretary of State may prescribe additional standards), .003 (authorizing Secretary of State, upon determination that system does not comply, to limit or prohibit its use), .031 (requiring approval by Secretary of State before voting system may be used), .032 (providing general requirements for approval and authorizing Secretary of State to prescribe more specific requirements), .033 (setting out additional standards), .0331 (same), .038 (providing for determination by Secretary of State of whether system satisfies requirements for approval). The Secretary of State is required to prescribe procedures for implementing and administering elections using computerized voting systems and may modify procedures as necessary to allow the use of an authorized system. Id. § 128.001(a), (c). The Secretary of State may also prescribe the form and content of a ballot for an election using a voting system, including one that uses DREs, to conform to the formatting requirements of the system. Id. § 52.075.

As the chief election officer of the state, the Secretary of State is charged with obtaining and maintaining uniformity in the application, operation, and interpretation of the Election Code and with distributing comprehensive written directives and instructions to state and local authorities who administer election laws. Id. §§ 31.001, .003. In implementing this charge as it relates to the certification and use of the Hart eSlate system, the Secretary of State exercised his discretion to define CVR in a manner consistent with that of the EAC and directed election authorities, including DeBeauvoir, to apply that definition. In light of the discretion afforded the Secretary of State in the Election Code and guided by the Andrade court's recognition of that discretion and its deference to the legislature on policy matters such as the integrity and vulnerability of DREs, we cannot conclude that DeBeauvoir failed to comply with the Election Code or Texas Constitution when she implemented the use of the Hart eSlate system and followed the Secretary of State's directive to adopt the use of CVRs as ballot images. See id. §§ 52.075, 122.001, .003, .031, .032, .038, 128.001(a), (c); Andrade , 345 S.W.3d at 14, 16, 18.

Finally, Pressley and Rogers argue that any decision by the Secretary of State that allowed the true outcome of the election to be decided by something other than a numbered ballot would be unconstitutional and that "the evidence eSlate formats a ballot raises at least a fact issue as to whether the Secretary of State had authority under the Texas Election Code § 52.075 to imply in its instructions and definitions that a CVR is synonymous with an image of a ballot as defined in the Election Code." However, to the extent Pressley and Rogers challenge the Secretary of State's authority to adopt the eSlate or to define CVR or ballot image, the authority of the Secretary of State is beyond the scope of an election contest and is not properly before us. See Tex. Elec. Code § 221.003. Taking the evidence favorable to Pressley and Rogers and indulging every reasonable inference and resolving any doubts in their favor, we conclude that Pressley and Rogers did not produce more than a mere scintilla of evidence that DeBeauvoir violated the Election Code by failing to maintain ballot images and print them for purposes of a recount and thus did not meet Pressley's burden to create a fact issue as to whether the outcome of the election is the true outcome. See id. § 221.003 ; Emmett , 459 S.W.3d at 589 ; Mack Trucks , 206 S.W.3d at 582 ; Dorsett , 164 S.W.3d 656.

Irregularities

Pressley and Rogers also argue that a series of irregularities in the conduct of the election make the true outcome of the election impossible to determine. They first argue that there were numerous "Invalid/Corrupt" mobile ballot boxes (MBBs). The record reflects that an MBB is a mobile or removable device that is inserted into a judge's controller booth (JBC) prior to voting and stores balloting in the JBC. The JBC is a device that stores the inventory of unvoted ballots, inventory of voted ballots, and access codes that are provided to voters for accessing the voting machines. At the end of voting, the MBB is removed, inserted into a reader, and used to tally votes at the central counting station. Pressley offered evidence that the Tally Audit Log, an audit report printed by Travis County, contained nine error messages reading "Invalid/Corrupt" upon insertion of the MBB into the JBC. Pressley and Rogers contend that these errors, in conjunction with other alleged irregularities, discussed below, make it impossible to say how many illegal votes were counted or how many legal votes were not counted. See 1 Tex. Admin. Code § 81.62(a), (b)(1) (requiring real-time audit log of significant election events, including error messages).

However, Pressley produced no evidence that the "Invalid/Corrupt" error messages resulted in any legal votes not being counted, resulted in any illegal votes being counted, or otherwise materially affected the outcome of the election. See Tex. Elec. Code § 221.003 ; Emmett , 459 S.W.3d at 589 ; Mack Trucks , 206 S.W.3d at 582 ; Woods , 363 S.W.3d at 713. Rather, Pressley's expert witness, Jacobson, stated only that it was "not known" whether the error messages reflected the insertion of nine individual MBBs, multiple insertions of several MBBs, or nine insertions of the same MBB, and he opined that "properly created MBB(s) may have contained legitimate votes, but some event made it/them unreadable" and that the fact that the error messages occurred "near the beginning of a group of MBBs being read warrants further study." This type of expert testimony is based on uncertainty and mere speculation and is therefore unreliable and irrelevant. Gharda USA, Inc. v. Control Sols., Inc. , 464 S.W.3d 338, 350 (Tex. 2015) (concluding that expert's opinion that manufacturing process "could" have resulted in contaminated product was unreliable speculation); see also Coastal Transp. Co. v. Crown Cent. Petroleum Corp. , 136 S.W.3d 227, 232 (Tex. 2004) (stating that opinion testimony that is speculative is not relevant). Moreover, although DeBeauvoir testified in her deposition that nine such error messages were more than she had heard of before and that she was not certain what had caused those specific errors, she also testified that "you put [the MBB] in once and ... you know, you put it in a second time and it reads just fine." In a related argument, Pressley and Rogers also contend that the "reader" that tallied the votes was broken. However, the only evidence Pressley produced in support of this allegation is DeBeauvoir's testimony that she "suspect[ed]" that the MBB error messages may have occurred because there was something wrong with the reader and not the MBBs. This evidence does not constitute evidence that any legal votes were not counted or any illegal votes were counted materially affecting the outcome of the election. See Tex. Elec. Code § 221.003 ; Emmett , 459 S.W.3d at 589 ; Mack Trucks , 206 S.W.3d at 582 ; Woods , 363 S.W.3d at 713.

Pressley and Rogers also argue that eSlate "seals were broken[,] bringing the security and accuracy of the MBBs into question." Pressley produced affidavits from poll workers stating that certain eSlates were improperly sealed with "red seals" and that the workers re-sealed them with new "green seals." One worker reported that a seal had to be broken to disconnect the headphones, and another stated that he had to break and replace the seal to remove and replace a broken "wing" on the eSlate. Pressley produced no evidence that any seals were actually broken other than by election officials, who reported their actions, and who broke them only to replace red seals with green seals or to address hardware issues, much less any evidence that issues with the seals resulted in any legal votes not being counted or any illegal votes being counted or materially affected the outcome of the election. See Tex. Elec. Code § 221.003 ; Emmett , 459 S.W.3d at 589 ; Mack Trucks , 206 S.W.3d at 582 ; Woods , 363 S.W.3d at 713.

Pressley and Rogers next argue that the Tally Audit Log reflected that the computer that tallies the CVRs was left open on several occasions for extended periods of time. See 1 Tex. Admin. Code § 81.62(a), (b)(5) (requiring real-time audit log of significant election events, including users logging in and out of system). In her Sixth Amended Contest, Pressley alleged that because the computer was left open, "anyone with physical access could use the administrator account to arbitrarily change vote information." DeBeauvoir testified that she did not agree with the characterization by Pressley's counsel, Cohen, of audit log entries as reflecting one week between a user's last activity and his logging out, that she did not know if the audit log was correct as to those entries, that she was uncertain of what the coding on the audit log meant, and that she did not believe that the tally computer had been left open for a week. She further testified about the security measures Travis County uses to guard against tampering and explained that the system is not subject to hacking because it is a closed system, not connected to the Internet. Even assuming, however, that the tally computer remained open for periods of time, Pressley alleged only that someone "could" have accessed the computer and offered no evidence that anyone actually did access the tally computer or that the open computer resulted in any legal votes not being counted or any illegal votes being counted or materially affected the outcome of the election. See Tex. Elec. Code § 221.003 ; Emmett , 459 S.W.3d at 589 ; Mack Trucks , 206 S.W.3d at 582 ; Woods , 363 S.W.3d at 713.

The next irregularities Pressley and Rogers assert is that DeBeauvoir instructed her employees not to print zero tapes and results or tally tapes on the day of the runoff election as required by the Secretary of State. Zero tapes are printed when the eSlate is set up at the polls to establish that there are zero votes in the machine next to each name or question on the ballot and again after the election to clear them for use in the next election. Results or tally tapes are printed when the polls close and show the votes next to each name or question. The Secretary of State in the past issued an election advisory instructing election officials to print, sign, and maintain at least one zero tape from each device and at least two copies of the results or tally tape from each device. Pressley produced a letter from the Secretary of State giving Travis County, which uses countywide vote centers-where any voter from any precinct can vote-and conducts joint elections with long ballots, a special dispensation concerning zero and results or tally tapes for the November general election. To avoid delays associated with printing at countywide vote centers, the Secretary of State instructed Travis County to begin printing zero tapes before election day, to print abbreviated zero tapes on election day, and to print abbreviated results or tally tapes called "access code reports" or "access codes" after the polls closed. Pressley also produced a JBC "Judge's Envelope Cover" with the instruction, "DO NOT PRINT THE TALLY." In support of her argument that DeBeauvoir instructed her employees not to print zero tapes, Pressley cited only to allegations in her own pleadings. DeBeauvoir testified that it was because of the Secretary of State's letter instruction to print access codes in lieu of tally tapes that she directed her employees not to print tally tapes. She also testified that, in accordance with the Secretary of State's instructions, Travis County began printing zero tapes prior to election day, printed abbreviated zero tapes at each polling place on election day, and printed access codes at each polling place after the polls closed.

Pressley and Rogers argue that the special dispensation from the Secretary of State applied only to the November general election and that by following abbreviated procedures in the runoff without dispensation to do so, Travis County ignored a critical election security protocol. Thus, they contend, there is no proof that the JBCs contained zero votes when voting began and no proof of the vote totals each candidate received. However, the letter instructing Travis County to use the abbreviated procedures for the November general election was written before the election and before it was known that a runoff election would be required. In the letter, the Secretary of State pointed out that when the abbreviated procedures are used, an election is adequately auditable through various audit and review steps and that ballot images remain on the voting machines for recounts, contests, and other post-election reviews until archived for the following election. Further, even were we to assume that Travis County lacked special dispensation to print abbreviated zero and results or tally tapes, Pressley produced no evidence that there were any votes on the JBCs before voting began, that any votes were not tallied, or that the use of the abbreviated procedures materially affected the outcome of the election. See Tex. Elec. Code § 221.003 ; Emmett , 459 S.W.3d at 589 ;

Mack Trucks , 206 S.W.3d at 582 ; Woods , 363 S.W.3d at 713.

Pressley and Rogers next argue that Pressley's statistical analysis of the runoff election results indicates that the results are not believable. They contend that the analysis shows "very unusual and unique mathematical patterns and anomalies" and reveals that the results are erroneous and that the outcome of the election cannot be determined. The alleged anomalies include: (1) the top nine precincts, comprising 80% of the voters, showed exactly the same results for the general and runoff elections (65% to 35%) despite that 600 fewer voters voted in the runoff election; (2) overall results showed exactly the same results for the general and runoff elections (65% to 35%) despite that 4,000 fewer voters voted in the runoff election; and (3) no other runoff race in the past 11 years has shown as tight a distribution between a general election and a runoff election as this race, with a standard deviation of .06%. In her Sixth Amended Contest, Pressley also alleged that there were discrepancies in early voting results, including 28 duplicate entries for ballots by mail that "appear to have been counted twice or three times," early voting reports that were inconsistent with the canvassed results, which is "evidence of systemic errors occurring in the counting," and a discrepancy between the number of voters and the number of votes cast, which is "indicative of several known and documented scenarios of errors and security breaches that can occur with the Hart Electronic Voting System."

However, as shown by the express terms of her Sixth Amended Contest, Pressley alleged only that there "appear" to have been duplicate votes and that voting reports were "indicative" of errors and did not even allege, much less offer any evidence of, any actual duplication of votes or systemic errors. To the contrary, DeBeauvoir testified the post-election audit showed that "[e]verything balanced," that is, "[t]he number of ballots voted matched the number of people who were voting, in that entire picture." Likewise, Jacobson, Pressley's expert, stated only that the "unusual mathematical patterns" were "suspicious" and "warrant[ed] further analysis and testing." As with his testimony concerning the MBBs, Jacobson offered only speculation that something might be wrong. See Gharda , 464 S.W.3d at 350 ; Coastal Transp. , 136 S.W.3d at 232. Even assuming that the facts Pressley alleged constitute "very unusual and unique mathematical patterns and anomalies," Pressley asserted only a suspicion of actual irregularity and produced no evidence that there were errors in counting votes or breaches in security, or that the alleged anomalies materially affected the outcome of the election. See Tex. Elec. Code § 221.003 ; Emmett , 459 S.W.3d at 589 ; Mack Trucks , 206 S.W.3d at 582 ; Woods , 363 S.W.3d at 713.

The last irregularity Pressley and Rogers assert is that Travis County officials prevented Pressley's poll watchers from viewing the entire process of printing the CVRs from the tally computer for the manual recount. Election Code section 33.056 generally describes poll watchers' observing activity and provides, among other things, that a poll watcher is entitled to observe any activity conducted at the location where the poll watcher is serving and to sit or stand close enough to a member of a counting team to verify that the ballots are read correctly or to a member who is tallying the votes to verify that they are tallied correctly. Tex. Elec. Code § 33.056(b). Section 213.013 provides the same for a recount. Id. § 213.013(h). Section 213.016 provides that each candidate and her recount watchers are entitled to be present during the printing of images of ballots cast for purposes of a recount. Id. § 213.016. Section 33.061 provides that an official who knowingly prevents a watcher from observing an activity the watcher is entitled to observe commits a Class A misdemeanor. Id. § 33.061. Pressley and her recount watchers were allowed to be present during the printing of the CVRs but not during the retrieval and sorting of the CVRs on the tally computer. In her Sixth Amended Contest, under a subsection entitled "Contestant's Official Poll Watchers were Denied Access on Election Night-Four Counts of Criminal Violations Committed by Travis County Elections Officer," Pressley alleged that Michael Winn, Travis County Director of Elections, was informed multiple times that Pressley's poll watchers were being denied access and failed to correct the situation. In the next paragraph, Pressley cited section 33.061. Specifically, Pressley and Rogers complain that Pressley and her recount watchers were not allowed to monitor the integrity of where the CVRs were retrieved, the source where the retrieval occurred, or the copying of the CVR files to an aggregated pdf file, which "they were arguably allowed to do" under sections 33.056 and 213.013.

Section 33.056 provides that poll watchers may observe election activities but does not specifically apply to recounts. See id. § 33.056. Section 213.013 applies to recounts and provides generally that poll watchers may observe activities conducted in connection with the recount. See id. § 213.013(h). Section 213.016, which was enacted after sections 33.056 and 213.013, specifically addresses the printing of images of ballots cast using DREs for purposes of a recount and provides that candidates and their poll watchers are entitled to be present "during the printing of the images." Id. § 213.016 (emphasis added).

Assuming without deciding that Pressley and her recount watchers were entitled to view the retrieval, sorting, and copying of the CVR files, Pressley and Rogers have failed to explain how the inability of Pressley's poll watchers to view such activity during the recount had any effect on the results of the recount or on the outcome of the runoff election, much less a material effect. See id. § 221.003; Emmett , 459 S.W.3d at 589 ; Mack Trucks , 206 S.W.3d at 582 ; Woods , 363 S.W.3d at 713 ; see also Tex. R. App. P. 38.1(i) (stating that appellant's brief must contain clear and concise argument for contentions made with citations to authorities and record). They argue that it prevented the poll watchers and therefore the trial court from "being assured the MBBs containing the CVRs were the actual ones produced by the voting machines or the CVRs were being properly tallied." However, this argument-that the poll watchers were unable to determine whether the retrieval, sorting, and copying were done correctly-seems to invert the burden of proof. Pressley's burden was to show that this "irregularity" materially affected the outcome, and it is not sufficient for Pressley and Rogers merely to assert that they were unable to determine if procedures were performed correctly. Pressley did not produce any evidence that the poll watchers' inability to observe the retrieval, sorting, and copying of the CVR files resulted in its being done incorrectly and led to an erroneous result. See Willet , 249 S.W.3d at 589. Rather, DeBeauvoir testified that the post-election audit showed that the number of ballots cast matched the number of voters, and we have already concluded that Debeauvoir did not violate the Election Code in maintaining and printing CVRs as ballot images for the recount. See Andrade , 345 S.W.3d at 14, 16, 18. On the record before us, we conclude that the trial court did not err in determining that Pressley did not produce more than a mere scintilla of evidence that any illegal votes were counted, that any legal votes were not counted, or that the outcome of the election was materially affected as a result of these alleged irregularities taken separately or together. See Tex. Elec. Code § 221.003 ; Emmett , 459 S.W.3d at 589 ; Mack Trucks , 206 S.W.3d at 582 ; Dorsett , 164 S.W.3d 656 ; Woods , 363 S.W.3d at 713. We overrule sub-issue three of Pressley's first issue and sub-issue three of Rogers' fifth issue.

Sanctions

In Pressley's second issue and in Rogers' first through fourth and sixth issues, Pressley and Rogers argue that the trial court abused its discretion in awarding sanctions against them. The trial court imposed sanctions against Pressley and Rogers for violations of Chapter 10 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §§ 10.001 -.006. Chapter 10 allows sanctions, in relevant part, for pleadings that lack legal or factual support. It provides that upon signing a pleading or motion, a signatory attests that:

(2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; [and]

(3) each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery....

Id. § 10.001(2), (3). Sanctions may be awarded against a party, the party's attorney, or both, id. § 10.004, except that a court may not sanction a represented party under section 10.001(2) for unfounded legal contentions, id. § 10.004(d). Casar filed a motion for sanctions against Pressley for violation of section 10.001(3) and against Rogers for violation of sections 10.001(2) and 10.001(3). Following a hearing at which Pressley, Rogers, and DeBeauvoir testified about the election contest and counsel for Casar testified and offered documentary evidence in support of Casar's claim for attorney's fees, the trial court awarded sanctions in the amount of $40,000 against Pressley and in the amount of $50,000 against Rogers. The trial court also awarded contingent appellate fees against Pressley and Rogers-to be paid only if they are unsuccessful on appeal-in the amount of $25,000 for appeal to the court of appeals, $10,000 for filing a petition for review in the Texas Supreme Court, $15,000 if full briefing is requested by the Texas Supreme Court, and $15,000 if oral argument is granted by the Texas Supreme Court. The trial court further ordered that Pressley and Rogers were to be jointly and severally liable to Casar for litigation expenses of $7,794.44.

We review the imposition of sanctions under Chapter 10 for an abuse of discretion. Nath v. Texas Children's Hosp. , 446 S.W.3d 355, 361 (Tex. 2014) (citing Low , 221 S.W.3d. at 614 ). A sanctions award will not withstand appellate scrutiny if the trial court acted without reference to guiding rules and principles to such an extent that its ruling was arbitrary or unreasonable. Id. (citing Cire v. Cummings , 134 S.W.3d 835, 838-39 (Tex. 2004) ). In determining whether the trial court abused its discretion, we must decide whether the sanctions were appropriate and just under a two-part inquiry. Id. at 363. The appellate court must ensure that (1) there is a direct nexus between the improper conduct, the offender, and the sanction imposed, and (2) less severe sanctions would not have been sufficient to promote compliance. Id. We do not rely only on the trial court's findings and conclusions but must independently review the entire record to determine if the trial court abused its discretion. American Flood Research, Inc. v. Jones , 192 S.W.3d 581, 583 (Tex. 2006) (per curiam). We will not hold that a trial court abused its discretion in levying sanctions if some evidence supports its decision. Nath , 446 S.W.3d at 361 (citing Unifund CCR Partners v. Villa , 299 S.W.3d 92, 97 (Tex. 2009) ). Generally, courts presume pleadings and other papers are filed in good faith. Id. The party seeking sanctions bears the burden of overcoming the presumption of good faith. Id. With these principles in mind, we turn to the Pressley's and Rogers' issues. Where their issues and arguments coincide, we address them together; where their issues and arguments diverge, we address them separately.

Plenary Power of the Trial Court

In sub-issue one of Pressley's second issue and in Rogers' fourth issue, Pressley and Rogers argue that the trial court did not have plenary jurisdiction to enter the final judgment containing sanctions, rendering the sanctions award void. The trial court signed its original summary judgment order at a hearing held on May 26, 2015. At the request of counsel for Pressley, Cohen, the trial court added "Mother Hubbard" language, indicating that the order resolved all issues and was final and appealable. At the time of the order, Casar's amended motion for sanctions was pending. On June 4, Casar filed a second amended motion for sanctions, and on June 12, he filed a third amended motion for sanctions. On June 24, at the conclusion of the hearing on the motion for sanctions, Casar offered and the trial court signed an amended summary judgment order, which expressly stated that it "amended and replaced" the prior May 26 order. The June 24 order omitted the "Mother Hubbard" finality language and stated that Casar's motion for sanctions remained pending and that the court would consider and decide that motion in a separate order. The trial court stated that it signed the amended order to extend its plenary power until it could rule on the motion for sanctions. On July 23, the trial court signed an order granting Casar's motion for sanctions and an amended final judgment, incorporating the terms of its sanctions order, including the findings of fact and conclusions of law contained therein, and its prior order granting Casar's no-evidence motion for summary judgment.

Pressley and Rogers argue that the June 24 order did not amend the May 26 order because the June 24 order was not a final judgment and that only a motion seeking substantive change will extend the deadlines and the court's plenary power under Rule 329b(g). See Tex. R. Civ. P. 329b(g) (providing that timely motion to modify, correct, or reform judgment extends trial court's plenary power). They also argue, without citing authority, that Casar's amended motions for sanctions were not post-judgment motions that extended the trial court's plenary power under rule 329b(g) because they related back to the original, pretrial motion and amended motion for sanctions. We do not find these arguments persuasive and find the cases cited in support of them inapposite on the facts before us.

The trial court had plenary power to vacate, modify, correct, or reform its summary judgment order within thirty days after signing the May 26 order. See id. R. 329b(d); Texas Dep't of Transp. v. A.P.I. Pipe & Supply, LLC , 397 S.W.3d 162, 168 (Tex. 2013). By obtaining the trial court's signature on the amended summary judgment order, which was expressly interlocutory, within thirty days of the ori