Jesus Ortiz (Appellant/Cross-Appellee) v. Gustavo Flores (Appellee/Cross-Appellant) ( 2010 )

MEMORANDUM OPINION
No. 04-10-00670-CV
Jesus ORTIZ,
Appellant
v.
Gustavo FLORES,
Appellee
From the 83rd Judicial District Court, Val Verde County, Texas
Trial Court No. 28256
The Honorable M. Rex Emerson, Judge Presiding
PER CURIAM
Sitting: Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: October 27, 2010
DISMISSED FOR LACK OF JURISDICTION
On September 17, 2010, appellant filed a motion to extend the time to file the notice of
appeal along with his notice of appeal. The notice of appeal states that appellant desires to
appeal from two orders relating to a primary election contest: “Judgment for Cost” entered on
August 31, 2010, and “Second Amended Order — Voiding Election” entered on September 3,
2010. Section 232.014(b) of the Election Code provides that in order for an accelerated appeal in
a primary contest to be timely, “an appellant’s bond, affidavit, or cash deposit for costs of appeal
04-10-00670-CV
must be made not later than the fifth day after the date the district court’s judgment in the contest
is signed. If the appellant is not required to give security for the costs of appeal, the notice of
appeal must be filed by the same deadline.” TEX. ELEC. CODE ANN. § 232.014(b) (West 2010).
Accordingly, the notice of appeal was due on September 8, 2010, five days after the second
amended order was signed by the trial court. Appellant, however, maintains that the five-day
deadline began to run on September 14, 2010, when the United States District Court for the
Western District of Texas (Del Rio Division) issued a preliminary injunction enjoining County
and State officials from holding the special election ordered by the trial court, and thus the notice
of appeal was timely filed on September 17, 2010.
We disagree that the timeline for filing the notice of appeal runs from the September 14,
2010 federal order. First, this court does not have jurisdiction over an appeal arising from the
decision of a federal district court. See TEX. CONST. art. 5, § 6(a). Further, we note that the
federal order here was issued in a different lawsuit. 1 Accordingly, the notice of appeal in the
appeal before us was due on September 8, 2010 and was untimely filed on September 17, 2010.
Appellant alternatively requests that we extend the time for filing the notice of appeal.
When a statute provides the deadline for perfecting an appeal, compliance with that statutory
deadline, not the deadline in the rules of appellate procedure, is necessary to confer appellate
court jurisdiction. In re D.B., 80 S.W.3d 698, 702 (Tex. App.—Dallas 2002, no pet.); Bailey v.
Clark, 407 S.W.2d 520, 521 (Tex. Civ. App.—Fort Worth 1966, no writ) (applying five-day
deadline in predecessor of section 232.014(b) of Election Code providing for accelerated appeal
of primary election contest for giving notice of appeal and filing appeal bond and dismissing
1
The preliminary injunction is styled LULAC of Texas Council 4338, Lupita De La Paz, James Fernandez,
Rosalinda Perez, Jose L. Perez, Letecia Ortiz, Jesus Ortiz, Robert Club, Val Verde Democratic Party, Diana
Salgado (in her capacity as Chair of the Val Verde Democratic Party) v. Genorosa G. Ramon (in her official
capacity as Val Verde County Clerk), Val Verde County (by and through Mike Hernandez, County Judge), State of
Texas, Governor Rick Perry (in his official capacity as Governor of Texas).
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appeal when appellant gave notice of appeal and filed appeal bond more than five days after
primary election contest decided). Because appellant failed to timely file his notice of appeal
pursuant to section 232.014, we lack jurisdiction over this appeal and must dismiss it.
Accordingly, we deny appellant’s motion to extend the time to file the notice of appeal, and
dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a). Costs of appeal are taxed
against appellant.
PER CURIAM
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