De La Paz v. Gutierrez

• Decision Date: 29 April 2019
• Docket Number: NUMBER 13-19-00133-CV
• Parties: ESEQUIEL DE LA PAZ, Appellant, v. OFELIA GUTIERREZ, Appellee.
• Court: Texas Court of Appeals

ESEQUIEL DE LA PAZ, Appellant, v. OFELIA GUTIERREZ, Appellee.

NUMBER 13-19-00133-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

April 29, 2019

On appeal from the 105th District Court of Kleberg County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Perkes

Memorandum Opinion by Chief Justice Contreras

This is an accelerated appeal in a primary election contest. See TEX. ELEC. CODE ANN. § 232.014 (West, Westlaw through 2017 1st C.S.). The dispute concerns the Democratic primary run-off election for Kleberg County Justice of the Peace Precinct 4, between appellant Esequiel De La Paz and appellee Ofelia Gutierrez. De La Paz has filed the instant appeal challenging the trial court's order, rendered on March 22, 2019, declaring Gutierrez the winner of the run-off and "suggest[ing] and authoriz[ing]" a general election to be held on May 4, 2019. De La Paz has also filed a "Motion for Emergency Stay" seeking to stay all underlying proceedings and to have the May 4 general election abated. Per our request, Gutierrez filed a response to the motion for emergency stay; De La Paz filed a reply to the response.

In their filings related to the motion for emergency stay, the parties focus principally on the substantive merits of the appeal. Considering this fact, and in light of the urgent and extraordinary nature of the issues presented, we order the appeal to be submitted without briefs. See TEX. R. APP. P. 28.1(e); In re Tex. Natural Res. Conservation Comm'n, 85 S.W.3d 201, 207 (Tex. 2002).

Compelled by clear and long-standing precedent, we conclude that the trial court lost subject matter jurisdiction over Gutierrez's election contest when absentee voting began for the November 6, 2018 general election, at the latest. Accordingly, we vacate the trial court's orders rendered subsequent to that time, and we dismiss the case for want of jurisdiction.

I. BACKGROUND

The following background facts are taken from the parties' filings related to the motion for emergency stay, as well as the records filed in the related causes in this Court, of which we take judicial notice. See TEX. R. EVID. 201; Estate of York, 934 S.W.2d 848, 851 (Tex. App.—Corpus Christi 1996, writ denied) (holding that an appellate court may take judicial notice of its own records in a case involving the same subject matter between the same parties).

On May 5, 2018, De La Paz and Gutierrez finished first and second in the Democratic primary election for Justice of the Peace Precinct 4, but neither received a majority of votes, so they both advanced to a run-off. De La Paz, the incumbent, won the ensuing May 22, 2018 run-off election by six votes. On June 6, 2018, Gutierrez filed a contest suit pursuant to the election code in trial court cause number 18-290-D. See TEX. ELEC. CODE ANN. § 221.003 (West, Westlaw through 2017 1st C.S.). After a bench trial, the trial court ruled in favor of Gutierrez on July 5, 2018, holding that seven of De La Paz's family members illegally voted in the May 22 primary run-off because they did not reside in Precinct 4. The trial court voided the results of the May 22 election and ordered that a new primary run-off be held on August 14, 2018. De La Paz appealed this ruling, and we affirmed. De La Paz v. Gutierrez, No. 13-18-00377-CV, 2018 WL 5289553, at *7 (Tex. App.—Corpus Christi Oct. 25, 2018, no pet.) (mem. op.) (declining to "read the election code as mandating that every voter accused of casting an illegal vote must disclose the specific race in which he voted" and concluding that legally and factually sufficient evidence supported the trial court's judgment).

Meanwhile, Kleberg County election authorities proceeded to prepare for the regularly-scheduled November 6, 2018 general election. As part of this preparation, sometime in September 2018, county officials ordered general election ballots with De La Paz listed as the Democratic nominee for Justice of the Peace Precinct 4, consistent with the statute which provides that enforcement of the trial court's order voiding the May 22 primary run-off results was automatically suspended when De La Paz perfected his appeal. See TEX. ELEC. CODE ANN. § 232.016 (West, Westlaw through 2017 1st C.S.).The general election went forward as scheduled, and De La Paz won uncontested.¹

After we denied De La Paz's motions for rehearing and for en banc reconsideration in the 2018 appeal, the trial court rendered a "Final Judgment After Appeal" in cause number 18-290-D on December 5, 2018,² ordering that the new primary run-off election be held on February 12, 2019. The December 5 order additionally directed the Kleberg County voter registrar to remove from the voter rolls the names of the seven voters who cast illegal ballots in the May 22 election.

Pursuant to the trial court's order, a new primary run-off was held on February 12, 2019. Gutierrez prevailed. De La Paz then filed an "Original Petition for Election Contest" in trial court cause number 19-128-D, arguing that the February 12 results should be set aside as void on grounds that "Gutierrez's contest of the [May 22, 2018 run-off] is moot" because "a final order was not issued on either matter in time for the election officials to meet statutory deadlines for the November 2018 general election."

The trial court held a hearing on both cause numbers 18-290-D and 19-128-D on March 20, 2019. At that hearing, De La Paz non-suited the claims he raised in cause number 19-128-D.

On March 22, 2019, the trial court rendered an "Order Regarding Primary Election of February 2019" in cause number 18-290-D, which stated in part:

The Court notes that [De La Paz]'s claim that this matter is now moot and there is no subject matter jurisdiction arose (if indeed it did arise at all) in early September 2018 when the state's general election ballots were first prepared. [De La Paz] requested extensions of time to perfect his appealand never before challenged the authority of the 13th Court of Appeals to order a new election or decide the merits of the appeal.

. . . .

[De La Paz] by his delay [sic] request while on appeal, participation in the appeal without challenging the Court of Appeal's jurisdiction, failing to raise his mootness claim in the Court of Appeals, actively participating in the Court Ordered Election and invoking this Court's Jurisdiction start a second election contest [sic] amount to a Waiver of his claim.

By this order, the trial court declared Gutierrez "the winner of the Court Ordered Special Democratic Primary Election for Justice of the Peace Pct. 4." However, the court denied Gutierrez's requests to remove De La Paz from office and to declare her the rightful office holder. The March 22 order also contained a section entitled "Ancillary Findings Suggestion and Authorization" which stated in part:

The Court find [sic] it is appropriate to Authorize (if it needs to so authorize or can so authorize) the Kleberg County Clerk to conduct a general election limited to Precinct 4 for the office of Justice of the Peace precinct 4, Kleberg County, Texas; whereas the Contestant Ophelia "Ofie" Gonzales [sic] would be listed on the ballot as the Democratic candidate in the general election.

Should the County Clerk schedule said election on May 4, 2019, the Court finds the follow [sic] dates and procedures are appropriate;

The general election mentioned above may occur on May 4, 2019 from 7:00 a.m. to 7:00 p.m. with early voting to begin April 22, 2019 through April 30, 2019. Early voting will be conducted each day from 8:00 a.m. to 5:00 p.m. Election Day polling location(s) may be consolidated pursuant to Election Code Section 42.009. The last day to register to vote or make changes to address is April 4, 2019. The last day to file for a write-in candidate shall be April 5, 2019. The last day for early voting clerk to receive applications for a ballot to be voted by mail is April 23, 2019 pursuant to Election Code Section 84.007. All annual applications for ballot by mail received by the County Clerk shall be sent a ballot. Applicants that request a ballot by mail due to out of county need to submit a new application for a ballot by mail. The election results shall be canvassed no later than May 15, 2019 pursuant to Election Code Section 172.116(b). If there are no declared write-in candidates as specified by the Election Code, the County has the authority to cancel the election in accordance with 2.056 of the Election Code.

Following rendition of this order, De La Paz filed a petition for writ of mandamus with this Court, arguing that Gutierrez's primary election contest is moot "because there was no final judgment in place before the November general election." We summarily denied the petition. See In re De La Paz, No. 13-19-00130-CV, 2019 WL 1434953, at *1 (Tex. App.—Corpus Christi Apr. 1, 2019, orig. proceeding [mand. denied]); see also TEX. R. APP. P. 52.8(d) ("When denying [mandamus] relief, the court may hand down an opinion but is not required to do so.").

De La Paz perfected this appeal on April 1, 2019, thereby automatically suspending execution of the March 22, 2019 order. See TEX. ELEC. CODE ANN. § 232.016.

II. DISCUSSION

A case is moot when either no live controversy exists between the parties or the parties have no legally cognizable interest in the outcome. City of Krum v. Rice, 543 S.W.3d 747, 749 (Tex. 2017) (per curiam). "A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal." In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding). When a case becomes moot, the parties no longer have standing, which requires the court to dismiss for lack of subject matter jurisdiction. City of Krum, 543 S.W.3d at 750. Subject matter jurisdiction presents a question of law we review de novo. City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013).

In his motion for emergency stay,...