David Porras v. Jaime U. Maldonado--Appeal from 229th Judicial District Court of Starr County

MEMORANDUM OPINION

No. 04-06-00343-CV

David PORRAS,

Appellant

v.

Jaime U. MALDONADO,

Appellee

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

Trial Court No. DC-06-152

Honorable J. Robert "Bobby" Flores, (1) Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone, Justice

Rebecca Simmons , Justice

Delivered and Filed: October 25, 2006

AFFIRMED

On March 31, 2006, Appellant David Porras filed an election contest challenging the results of the Democratic primary race for County Treasurer of Starr County, Texas. Subsequently, Appellee Jaime U. Maldonado filed a motion to dismiss based on Porras' failure to set a trial date as required by statute. The trial court granted the motion and dismissed the cause of action. Porras now argues the trial court erred in dismissing the election contest. We affirm the order of the trial court.

Factual Background

On March 7, 2006, the Democratic Party primary elections were held in Starr County. Jaime Maldonado was declared the Democratic candidate for the position of county treasurer and Appellant David Porras requested a recount. During the course of the recount, Porras appeared the victor, only to be told that after further review, Maldonado was the official Democratic Party nominee.

On March 31, 2006, Porras subsequently filed suit in district court alleging misconduct and/or negligence in the recount and primary election. Maldonado filed an answer on April 5, 2006 and a notice of disqualification requesting the appointment of a special judge. As a result, on April 11, 2006, the Texas Supreme Court appointed the Honorable Robert "Bobby" Flores to preside over the election contest. On April 24, 2006, Maldonado filed a motion to dismiss the election contest asserting, in part, that the trial court did not have jurisdiction based on Porras' failure to set the case for trial within the statutory deadline in Sec. 232.012(d) of the Election Code. Tex. Elec. Code Ann. 232.012 (Vernon 2003). In his opposition to the motion to dismiss, Porras asserted that Sec. 232.012(d) was discretionary, not mandatory, and therefore did not deprive the trial court of jurisdiction.

At the hearing held on May 18, 2006, Maldonado asserted that, in order to extend the trial date, Porras was required to file a motion for continuance. In response, Porras argued that because no trial date had yet been set, a motion for continuance would not have been proper. Additionally, Porras argued that the first notice he received of Judge Flores' appointment was via Maldonado's motion to dismiss, which was long after the alleged trial setting deadline. In other words, to Porras' knowledge, there was no judge from whom to request a trial setting until the deadline had already passed. The trial court granted the motion to dismiss and signed the order on May 24, 2006 without setting forth its reasoning.

Dismissal

Porras asserts that the trial court erred in dismissing the election contest for want of jurisdiction because, even in the absence of a trial date setting, Sec. 232.012(d) of the Texas Election Code does not deprive the court of jurisdiction. Tex. Elec. Code Ann. 232.012 (Vernon 2003). The court, however did not specify its reason for the dismissal in its order. When, as here, the record does not contain findings of fact or conclusions of law, and the trial court did not specify the reason for dismissal, we must affirm on the basis of any legal theory supported by the record. City of Houston v. Robinson, 837 S.W.2d 262, 264 (Tex. App.--Houston [1st Dist.] 1992, no writ).

A. Jurisdiction

We first address whether the failure to set the trial within the statutory deadline is jurisdictional. We review a trial court's ruling on a motion to dismiss for lack of subject matter jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In relevant part, Sec. 232.012(d) provides that "[t]he judge shall set the contest for trial for a date not later than the fifth day after the date by which the contestee must answer." Tex. Elec. Code Ann. 232.012 (Vernon 2003). Porras filed an election contest on March 31, 2006. The trial judge was required to set the contest for trial not later than five days after the answer date, or by April 10, 2006. Tex. Elec. Code Ann. 232.012(d) (Vernon 2003). No trial setting was ever requested prior to the hearing on Maldonado's motion to dismiss on May 18, 2006.

In Honts v. Shaw, 975 S.W.2d 816, 819 (Tex. App.--Austin 1998, no pet.), the appellees asserted that the trial court lacked jurisdiction to hear the appellants' election contest based on the appellants' failure to timely notify the Secretary of State of his intention to contest the election and to secure a trial setting in accordance with Section 232.012(d) of the Election Code. Relying onHines v. Hash, 843 S.W.2d 464, 468 (Tex. 1992), the Austin Court noted that when a statute does not specify the consequences for failing to comply with a time provision, the courts must turn to the statute's purpose for guidance.

If the statute directs, authorizes or commands an act to be done within a certain time, the absence of words restraining the doing thereof after or stating the consequences of failure to act within the time specified, may be considered as a circumstance tending to support a directory construction.

Honts, 975 S.W.2d at 820 (citing Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956)).

The Austin Court of Appeals concluded that the failure to comply with the time requirements did not deprive the trial court of subject matter jurisdiction. Honts, 975 S.W.2d at 820. We similarly agree that the failure to set the case for trial is not jurisdictional. In this case, the trial court had jurisdiction to hear the election contest. We must therefore determine whether the trial court abused its discretion in dismissing the case for any non-jurisdictional reason.

B. Failure to Obtain Trial Setting

A trial court clearly abuses its discretion if "it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). The decision as to whether a trial court abused its discretion is made on a case-by-case basis. Federal Deposit Ins. Corp. v. Kendrick, 897 S.W.2d 476, 481 (Tex. App.--Amarillo 1995, no writ).

Maldonado's motion to dismiss was premised on Porras' failure to follow the guidelines prescribed in Sec. 232.012(d) and not under any particular provisions of the Texas Rules of Civil Procedure. The thrust of his argument was that Porras failed to diligently pursue his claims by waiting over two months to request a trial setting when the statute contains a deadline.

The trial court provided Porras an opportunity to provide an explanation for his failure to seek a trial setting within the deadline articulated in Sec. 232.012. However, Porras failed to bring forward any evidence to support a reasonable excuse for his delay. In fact, although he originally stated that he could not set the case for trial because there was no judge assigned to the case, Porras failed to set the case for more than two weeks after he was notified that Judge Flores would be hearing the case. Porras never requested the case be set for trial and never requested a continuance. In fact, at the motion to dismiss hearing on May 18, 2006, Porras asked the trial court for time in which to conduct depositions and made his first request for a trial date, proposing the date of May 24, 2006.

The statute under which Porras filed his case contained a five day deadline for a trial setting. As of May 18, 2006, when the court heard the motion to dismiss, it was thirty-eight days beyond the deadline and Porras had neither set the case for trial nor requested a motion for continuance. The Election Code sets out accelerated procedures for election contests. "[E]lections are politically time sensitive, and legislative remedies for contested elections are to be strictly followed." Rodriguez v. Cuellar, 143 S.W.3d 251, 260 (Tex. App.--San Antonio 2004, pet. dism'd). The court could have found that such unexplained delay did not comport with the rapid trial requirements of the statute. Accordingly, we cannot say the trial court acted without reference to any guiding rules and principles or that his actions were arbitrary or unreasonable. We, therefore, overrule Porras' points of error and affirm the order of the trial court.

Rebecca Simmons , Justice

1. Sitting by assignment of the Texas Supreme Court.