Wayne Johnson v. Dan (Danny) Halley

• Court: Court of Appeals of Texas
• Decided: December 21, 2018
• Docket: 06-18-00108-CV
• Status: Published

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.

2 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