Zaragoza Gutierrez, III v. Carlos J. Montemayor--Appeal from 229th Judicial District Court of Duval County

No. 04-00-00517-CV

Zaragosa GUTIERREZ, III,

Appellant

v.

Carlos J. MONTEMAYOR, Jr.,

Appellee

From the 229th Judicial District Court, Duval County, Texas

Trial Court No. DC-00-81

Honorable Mike Westergren, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: December 29, 2000

DISMISSED AS MOOT

This appeal arises out of a contest to the Democratic primary election for county tax-assessor of Duval County, Texas. We do not reach the merits of the case and dismiss the appeal because the issue is moot.

On March 14, 2000, appellee, Carlos Montemayor, Jr., defeated the incumbent appellant, Zaragosa Gutierrez, III, in the Democratic primary vote to become a candidate for the office of Duval County tax assessor/collector. The margin of Montemayor=s victory was only seventeen votes. After a recount at the request of Gutierrez, Montemayor was again declared the winner but by only five votes. Gutierrez filed a contest in the district court in Duval County, which was tried before the Honorable Mike Westergren on May 22, 2000. A judgment declaring Montemayor the winner of the primary was signed on August 4, 2000. Gutierrez filed this appeal.

The law is settled that Aan election contest becomes moot, and the issues no longer justiciable, when a final judgment adjudging the validity or invalidity of [a] candidate=s certificate of nomination is not entered in time for election officials to comply with the statutory deadlines for preparing for and conducting the general election.@ Moore v. Barr, 718 S.W.2d 925, 926 (Tex. App.BHouston [14th Dist.] 1986, no writ); Salazar v. Gonzales, 931 S.W.2d 59, 60 (Tex. App.BCorpus Christi 1996, no writ). Courts have often remarked that the right to appeal a contest of a primary election, though provided for by statute, becomes illusory in light of the time constraints involved. Salazar, 931 S.W.2d at 60; Moore, 718 S.W.2d at 926.

We may take judicial notice that the general election in Duval County took place on November 7, 2000. See Salazar, 931 S.W.2d at 60 n.3. Although we had jurisdiction when the appeal was first filed, that jurisdiction was destroyed when the first absentee ballots could have been mailed for the general election, before either party filed a brief. See Salazar, 931 S.W.2d at 60 & n.2; Lerma v. Ramon, 760 S.W.2d 727, 730 (Tex. App.BCorpus Christi 1988, no writ); Tex. Elec. Code Ann. '86.004 (Vernon Supp. 2000) (early voting begins 45 days prior to November 7, 2000 election, September 23, 2000).

We have no choice but to dismiss this cause as moot. No motion for rehearing will be entertained. See Tex. Elec. Code Ann. ' 232.014(e) (Vernon 1986).

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH