McCasland v. Steele
| Decision Date | 07 June 1973 |
| Docket Number | No. 5250,5250 |
| Parties | George McCASLAND et al., Appellants, v. Mrs. W. Kirke STEELE et al., Appellees. |
| Court | Texas Court of Appeals |
Mays, Jacobs & Pevehouse, Corsicana, for appellants.
Dawson, Dawson & Smith, Corsicana, for appellees.
This is an election contest case involving a local option election . The sole question before us is whether notice of intention to contest the local option election was given the District Attorney of Navarro County as Contestee within the requirements of Article 9.03 of the Election Code, V.A.T.S. We hold that such notice of intention to contest the election was given the Contestee in compliance with Article 9.03 and in accordance therewith affirm the trial court's judgment.
On July 8, 1972, the town of Angus, Texas, in Navarro County, was incorporated by an election called for that purpose. Then on October 28, 1972, about three months and twenty-two days after incorporation, a local option election was held in the town of Angus to determine if the town should remain dry or the sale of beer and wine for off-presmises consumption should be permitted. The Commissioners Court of Navarro County canvassed the election returns on November 3, 1972, and declared that 73 votes were cast for the sale of beer and wine, and 70 votes against.
The Appellees Mrs. W. Kirke Steele, et al., as contestants, filed their petition which was labelled, 'Contestants' Notice of Election Contest' with the District Clerk of Navarro County on November 22, 1972, caused a regular citation to be issued directed to 'District Attorney of Navarro County, Texas, Contestee', together with a copy of Contestants' Petition attached thereto, and said citation with said petition attached was duly served by a deputy sheriff of Navarro County upon the District Attorney on the same day the petition was filed, that is, on November 22, 1972.
Then on the same day the suit was filed, the attorney for Contestants mailed a letter to the District Attorney by certified mail, return receipt requested, enclosing a copy of the petition, which was shown to be received by the District Attorney two days later, that is, on November 24, 1972.
The petition is a suit against the District Attorney in his official capacity as Contestee, and in paragraph I it is alleged: 'This is a notice and petition to contest the local option election held in the incorporated town of Angus, Navarro County, Texas, on October 28, 1972, (and) is hereby filed within the time allowed by law for contesting such election.' Then the petition alleges and sets out several different grounds upon which the election contest is based.
The District Attorney filed his 'Contestee's Original Answer', in the form of a general denial, on November 28, 1972.
Thereafter, Appellants McCasland, et al., who were either holders of permits to sell beer in Angus or had applications pending therefor, filed an Intervention seeking to uphold the election.
Appellants filed a Motion for Summary Judgment based upon the failure of Appellees (Contestants) to give notice of intention to contest the election to the District Attorney as Contestee in accordance with Article 9.03 of the Election Code, asserting that the trial court thereby lacked jurisdiction to hear the election contest.
Appellees filed a Motion for Summary Judgment upon the ground that wine is a liquor', and that under the provisions of Article 666--40b of the Penal Code of Texas, Vernon's Ann. the town of Angus was not qualified to hold such an election until it had been in existence for at least eighteen (18) months.
The trial court after hearing overruled Appellants' Motion for Summary Judgment (and thereby held that it had jurisdiction), and granted Appellees' Motion for Summary Judgment which declared the election invalid and void.
Appellants assert three points of error in their brief; however, in oral argument before this court counsel for Appellants stated that points two and three were waived. Therefore, we now consider Appellants' first point, which is their sole remaining point, as follows:
'The ...
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Moore v. City of Corpus Christi
...jurisdiction of the election contest insofar as the grounds set out in the Original petition are concerned, and no more. See McCasland v. Steele, 496 S.W.2d 937 (Tex.Civ.App.--Waco 1973, no The contestant, by an amended petition that was filed on August 5, 1976, alleged that the election wa......
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Davenport v. Commissioners' Court of Denton County
...1943, no writ); Maddox v. Commissioners Court of Palo Pinto County, 222 S.W.2d 475 (Tex.Civ.App. Eastland 1949, no writ); McCasland v. Steele, 496 S.W.2d 937 (Tex.Civ.App. Waco 1973, no Jurisdiction could not be properly denied on the second ground either. A copy of the contestants' petitio......
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Ortiz v. Thompson, 6187
...was too late. Moore v. City of Corpus Christi (Corpus Christi Tex.Civ.App.1976) 542 S.W.2d 720, n. r. e. See also McCasland v. Steele (Waco Tex.Civ.App.1973) 496 S.W.2d 937, no writ. In the instant case, the trial amendment was offered on June 21, 1979, more than sixty days after return day......