Mitchell v. Carroll Independent School District, No. 16975
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
| Writing for the Court | LANGDON |
| Citation | 435 S.W.2d 280 |
| Parties | W. P. MITCHELL et al., Appellants, v. CARROLL INDEPENDENT SCHOOL DISTRICT et al., Appellees. . Fort Worth |
| Docket Number | No. 16975 |
| Decision Date | 01 November 1968 |
Page 280
v.
CARROLL INDEPENDENT SCHOOL DISTRICT et al., Appellees.
Fort Worth.
Rehearing Denied Dec. 13, 1968.
Elton M. Hyder, Fort Worth, for appellants.
Spafford, Freedman, Hamlin, Gay & Whitham, and Warran Whitham, Dallas, for appellees.
LANGDON, Justice.
This is a school bond election contest.
The District Court held that the written instrument relied upon by the appellants as notice of intention to contest election does not notify appellees that appellants intend to contest the election in the District Court or that suit would be filed. On the basis of such holding and because appellants did not file their contest of the election (i.e., petition) in the District Court within thirty (30) days after the return day of election the court sustained appellees' pleas to the jurisdiction and in abatement and dismissed the election contest and this cause.
The appellants contend that the court erred in holding as it did because actual notice is all that is required by Article 9.03 of the Election Code, V.A.T.S. and that there is no necessity or requirement that the court proceedings contesting said election be actually filed in the District Court within thirty days from the return day.
We affirm.
The written instrument relied upon by the appellants as 'notice' reads as follows:
TO THE BOARD OF TRUSTEES OF THE
CARROLL INDEPENDENT SCHOOL DISTRICT
'AND ANY OTHER INTERESTED PARTY
'GENTLEMEN:
'In accordance with Article 9.03, Election Code of the State of Texas, and related Articles, the undersigned do hereby give you notice, in writing, in accordance with said Article, that they intend to contest the election held Saturday, February 17, 1968, at South Lake, Texas, in regard to issuance of school bonds, as provided on the ballot of said election. The grounds on which the contestants rely to contest said election are for numerous irregularities and illegal actions, including the following: * * *.'
The Election Code, Art. 9.03, 'Notice of contest,' V.A.C.S., provides: 'Any person intending to contest the election of any one holding a certificate of election for any office mentioned in this law, shall, within thirty (30) days after the return day of election, give him a notice thereof in writing and deliver to him, his agent or attorney, a written statement of the ground on which such contestant relies to sustain such contest. By the 'return day' is meant the day on which the votes cast in said election are counted and the official result thereof declared. Acts 1951, 52nd Leg., p. 1097, ch. 492, art. 131.'
The Election Code, art. 9.30, 'Other contested elections,' provides that the validity of an election held for any other purpose may be contested in the District Court of such county in the same manner and under the same rules, as far as applicable, as prescribed in this chapter (arts. 9.01--9.38) for contesting the validity of an election for a county office. Acts 1951, 52nd Leg., p. 1097, ch. 492, art. 158.
Page 282
'The writing must contain notice of the contestant's intention to contest the election and the ground on which he relies. The law is mandatory and compliance therewith is necessary to give the court jurisdiction. Failure to comply with the requirement renders the suit dismissible...
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Honts v. Shaw, No. 03-98-00217-CV
...cannot be waived. See Jordan v. Norman, 711 S.W.2d 358, 359 (Tex.App.--Beaumont 1986, no writ); Mitchell v. Carroll Indep. Sch. Dist., 435 S.W.2d 280, 283 (Tex.Civ.App.--Fort Worth 1968, writ dism'd w.o.j); see also Ex parte Progreso Indep. Sch. Dist., 650 S.W.2d 158, 160 (Tex.App.--Corpus ......
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Hiett v. Brier, No. 50515
...39 Cal.Rptr. 377, 393 P.2d 689 (1964). Contra Duggan v. Bailey, 317 P.2d 200 (Okl.1957); Mitchell v. Carroll Independent School District, 435 S.W.2d 280 However, defendants' motion to dismiss stated an alternative ground: failure to state a claim upon which relief can be granted. K.S.A. 60-......
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McCurry v. Lewis, No. 07-07-0427-CV.
...711 S.W.2d 358, 359 (Tex.App.-Beaumont 1986, no writ) (decided under former Election Code); Mitchell v. Carroll Indep. Sch. Dist., 435 S.W.2d 280, 283 (Tex.Civ.App.-Fort Worth 1968, writ dism'd w.o.j); Ex parte Progreso Indep. Sch. Dist., 650 S.W.2d 158, 160 (Tex.App.-Corpus Christi 1983, w......
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Arredondo v. City of Dallas, No. 05-99-01819-CV.
...after the return date of the election; the thirty-day limit is jurisdictional and non-waivable. Mitchell v. Carroll Indep. Sch, Dist., 435 S.W.2d 280 (Tex. Civ.App.-Fort Worth 1968, writ dism'd w.o.j.); Walker v. Thetford, 418 S.W.2d 276 (Tex.Civ.App.-Austin 1967, writ ref d n.r.e.). It is ......
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Honts v. Shaw, No. 03-98-00217-CV
...cannot be waived. See Jordan v. Norman, 711 S.W.2d 358, 359 (Tex.App.--Beaumont 1986, no writ); Mitchell v. Carroll Indep. Sch. Dist., 435 S.W.2d 280, 283 (Tex.Civ.App.--Fort Worth 1968, writ dism'd w.o.j); see also Ex parte Progreso Indep. Sch. Dist., 650 S.W.2d 158, 160 (Tex.App.--Corpus ......
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Hiett v. Brier, No. 50515
...39 Cal.Rptr. 377, 393 P.2d 689 (1964). Contra Duggan v. Bailey, 317 P.2d 200 (Okl.1957); Mitchell v. Carroll Independent School District, 435 S.W.2d 280 However, defendants' motion to dismiss stated an alternative ground: failure to state a claim upon which relief can be granted. K.S.A. 60-......
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McCurry v. Lewis, No. 07-07-0427-CV.
...711 S.W.2d 358, 359 (Tex.App.-Beaumont 1986, no writ) (decided under former Election Code); Mitchell v. Carroll Indep. Sch. Dist., 435 S.W.2d 280, 283 (Tex.Civ.App.-Fort Worth 1968, writ dism'd w.o.j); Ex parte Progreso Indep. Sch. Dist., 650 S.W.2d 158, 160 (Tex.App.-Corpus Christi 1983, w......
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Arredondo v. City of Dallas, No. 05-99-01819-CV.
...after the return date of the election; the thirty-day limit is jurisdictional and non-waivable. Mitchell v. Carroll Indep. Sch, Dist., 435 S.W.2d 280 (Tex. Civ.App.-Fort Worth 1968, writ dism'd w.o.j.); Walker v. Thetford, 418 S.W.2d 276 (Tex.Civ.App.-Austin 1967, writ ref d n.r.e.). It is ......