Chance Farnsworth v. State ( 2004 )

NO. 07-04-0249-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 10, 2004

______________________________



CHANCE WAYNE FARNSWORTH, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

NO. 15,407-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant, Chance Wayne Farnsworth, pled guilty to aggravated kidnapping and was sentenced to 20 years confinement in the Texas Department of Criminal Justice-Institutional Division. The sentence was imposed on February 4, 2004. On April 16, 2004, appellant filed a pro se notice of appeal with the trial court.

To be timely, a notice of appeal must be filed within 30 days after the sentence is imposed or suspended in open court if there has not been a timely motion for new trial filed with the court. Tex. R. App. P. 25.2 & 26.2(a)(1), (2). Here, no motion for new trial was filed with the trial court. Furthermore, appellant did not move for an extension of the deadline.

A timely filed notice of appeal is essential to invoke our appellate jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). As noted, appellant's sentence was imposed on February 4, 2004. No motion for new trial or extension of time was filed, making appellant's notice of appeal due on March 5, 2004. Appellant's notice of appeal was filed more than one month after that date. Because appellant's notice of appeal was untimely filed, we have no jurisdiction to consider the appeal.

Appellant's appeal is dismissed for want of jurisdiction.

Phil Johnson

Chief Justice

Do not publish.

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NO. 07-07-0207-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 30, 2008

                                       ______________________________

PEDRO MENDEZ, APPELLANT

V.

CITY OF AMARILLO, APPELLEE

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 95089-D; HONORABLE KELLY G. MOORE, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

  MEMORANDUM OPINION

          Appellant, Pedro Mendez, appeals the trial court’s decision granting the City of Amarillo’s plea to the jurisdiction. We affirm.

Background   

          On January 17, 2005, a group of citizens commenced a petition drive seeking to amend the charter of the City of Amarillo. Specifically, the group sought to amend the charter to reform the method of electing city commissioners. The group sought to increase the number of commissioners and also sought to establish election of city commissioners by single member districts instead of at-large voting After receiving and approving the petition, the city commission enacted an ordinance placing the two proposed amendments on the ballot for the November 7, 2006 general election. However, the ordinance placing the proposed amendments onto the ballot combined the two amendments into a single proposition. Although the petitioning group voiced their objection to the consolidation of the two proposed amendments into a single proposition, the two amendments remained as a single proposition on the ballot. After the election in which the proposition was defeated, Mendez filed an election contest suit contending that the wording of the ordinance violated state law. In his suit, Mendez named the City as the sole party contestee and served citation of the suit on Debra McCartt, the mayor of Amarillo. On December 28, 2006, the City filed its plea to the jurisdiction contending that Mendez had filed suit upon the City in error and that the trial court, therefore, had never acquired jurisdiction. On February 20, 2007, Mendez filed a response to the plea to the jurisdiction and amended his petition to name Mayor Debra McCartt as a party contestee. On April 30th, the trial court heard argument on the plea to the jurisdiction, granted the City’s plea, and dismissed the case by an order signed on May 13th. Mendez filed his notice of appeal on May 18th.

          Mendez appeals raising two issues: (1) whether the district court acquired jurisdiction even though Mendez failed to name the mayor as a party contestee because the mayor had notice of the action by virtue of service of citation, and (2) whether the trial court erred in dismissing the case without first giving Mendez an opportunity to amend his petition to properly name the mayor as a party to the contest.

Law and Analysis

          Whether a trial court has subject matter jurisdiction is a question of law and is, therefore, reviewed de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). An election contest, although tried in a district court, is still a legislative proceeding. See De Shazo v. Webb, 131 Tex. 108, 113 S.W.2d 519, 522 (1938). The constitutional authority giving the district courts jurisdiction to try contested elections prescribes no rules or legal machinery by which its jurisdiction may be enforced. Id. For instruction as to who can bring an election contest action and who shall be named as a contestee, we look to enacted statute. Id. Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity. Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2007).

          Under section 233.003 of the Texas Election Code, the contestee must be at least one of the following: (1) the presiding officer of the final canvassing authority for the contested election; (2) the presiding officer of the authority that ordered the contested election or the ordering authority, if ordered by an individual; or (3) if the person specified by subdivision (1) or (2) is incapacitated or cannot act for any other reason, another member of the specified authority. Tex. Elec. Code Ann. § 233.003(a) (Vernon Supp. 2004). Since the canvassing authority is the governing body of the municipality (city commission), see § 67.002(a)(2), the proper contestee under section 233.003 is the mayor, as the presiding officer of the city commission. Therefore, Mendez did not fulfill the statutory prerequisite to filing an election contest suit, because his suit named the City as the contestee instead of the presiding officer of the city commission. Although Mendez points out that McCartt was served citation on behalf of the City, the fact that McCartt had notice of the suit is insufficient to meet the requirements of the statute. See § 233.003(a); Mercer v. Woods, 33 Tex. Civ. App. 642, 78 S.W. 15, 17 (1903). Strict compliance with the requirements of the statute is necessary to invoke the district court’s jurisdiction. Id. at 646. Since Mendez did not file suit against a contestee, as required by section 233.003, within the prescribed time after the election, see § 233.006, we conclude that the district court did not have jurisdiction to try the election contest. Therefore, we conclude that the trial court did not err in granting the City’s plea to the jurisdiction. Because of our determination that the trial court did not have jurisdiction to hear Mendez’s petition for an election contest, the trial court had no jurisdiction to entertain any motions on behalf of Mendez, including any request to file an amended petition.

Conclusion

          For the foregoing reasons, we affirm the trial court’s order granting the City of Amarillo’s plea to the jurisdiction.  

                                                     Mackey K. Hancock

Justice

Campbell, J., concurring.