Texas Cases July 28, 2020: Flores v. Villarreal

Case Description

On Appellant's Unopposed Motion to Revise Trial Court Order Setting Briefing Deadlines.

ORDER

Before Chief Justice Contreras and Justices Benavides and Longoria
Order Per Curiam

This is an appeal from a summary judgment granted in a primary election contest. Appellant Jose "Joe" Flores has filed an "Unopposed Motion to Revise Trial Court Order Setting Briefing Deadlines." In the motion, he requests that we revise the trial court's briefing schedule to remove any provision for the filing of a sur-reply brief by appellee.

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Appellant represents that appellee is not opposed to the relief requested in the motion.

As a primary election contest under the election code, the underlying case is subject to very strict statutory timelines. See , e . g ., TEX. ELEC. CODE ANN. § 232.008(c)(1) (providing that a primary election contest must be filed not later than the tenth day after the date the election records are publicly available or the official result is determined); id . § 232.012(c) (providing that a primary contestee must file an answer to the contestant's petition "not later than 10 a.m. of the fifth day after the date of service of citation on the contestee"); id . § 232.012(d) (providing that the 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"). When an appeal is perfected in such a contest, the trial court must set a deadline for filing the appellate record and "may make any other orders to expedite an appeal that are reasonable and appropriate, including reducing the time normally allowed for filing appellate briefs, subject to review by the appellate court on motion of a party." Id . § 232.014(d).

The trial court's order setting appellate deadlines, dated July 22, 2020, states that "[t]he Court has been informed that the election officials must prepare the November 2020 ballot by August 26, 2020." The order then provides in relevant part as follows:

3. Appellant shall file his brief on or before July 28, 2020.

4. Appellee shall file his brief on or before August 4, 2020.

5. Appellant may file Appellant's Reply on or before August 7, 2020.

6. Appellee may file Appellee's Sur-Reply on or before August 10, 2020.

7. Briefing shall end on August 10, 2020.

As appellant notes in his motion, the rules of appellate procedure do not allow an appellee to file a sur-reply brief as a matter of right. See TEX. R. APP. P. 38. Considering

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this fact, along with the expedited timelines applicable to primary election contest appeals and the exigent circumstances present in this particular case, we find appellant's motion to be meritorious.

Accordingly, we GRANT appellant's "Unopposed Motion to Revise Trial Court Order Setting Briefing Deadlines." Sections 6 and 7 of the trial court's July 22, 2020 order setting appellate deadlines are hereby vacated. No appellee's sur-reply brief will be entertained in this case. The remainder of the order remains in full force and effect, and briefing shall conclude with the filing of appellant's reply brief, if any, on or before August 7, 2020.

IT IS SO ORDERED.

PER CURIAM

Delivered and filed the 28th day of July, 2020.