Wayne Johnson v. Dan (Danny) Halley ( 2018 )

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.
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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
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