Wayne Johnson v. Dan (Danny) Halley

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-18-00108-CV

WAYNE JOHNSON, Appellant

V.

DAN (DANNY) HALLEY, Appellee

On Appeal from the 6th District Court Red River County, Texas

Trial Court No. CV04405

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

The appellant, Wayne Johnson, seeks to appeal from the trial court’s judgment concerning

a contest of a primary election. The trial court’s judgment was signed October 4, 2018, and Johnson’s notice of appeal was filed November 12, 2018, thirty-nine days after the judgment was signed.

Pursuant to Section 232.014(b) of the Texas Election Code, an appeal from a judgment concerning a contest of a primary election is accelerated. To be timely, a notice of appeal from such a judgment must be filed “not later than the fifth day after the date the district court’s judgment in the contest is signed.” TEX. ELEC. CODE ANN. § 232.014(b) (West 2010). “When a statute provides the deadline for perfecting an appeal, compliance with the statutory deadline, not the deadline in the rules of appellate procedure, is necessary to confer jurisdiction on the appellate court.” Arismendez v. Vasquez, No. 04-12-00624-CV, 2012 WL 5874478, at *1 (Tex. App.— San Antonio Nov. 21, 2012, no pet.) (mem. op.) (citing Ortiz v. Flores, No. 04-10-00670-CV, 2010 WL 4259360, at *1 (Tex. App.—San Antonio Oct. 27, 2010, no pet.) (mem. op.); In re D.B., 80 S.W.3d 698, 702 (Tex. App.—Dallas 2002, no pet.)). The trial court signed the judgment at issue in this matter on October 4, 2018, and under Section 232.014(b), the notice of appeal was due five days later, or on October 9, 2018. See TEX. ELEC. CODE ANN. § 232.014(b). Johnson filed his notice of appeal November 12, 2018—thirty-nine days past the filing deadline—making it untimely.

3

In a letter dated November 20, 2018, we advised Johnson of this potential defect in our jurisdiction and afforded him the opportunity to show us how we had jurisdiction notwithstanding the failure to timely perfect the appeal. Johnson did not file a response.

Because Johnson did not timely file his notice of appeal, we dismiss the appeal for want of jurisdiction.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 20, 2018 Date Decided: December 21, 2018