                             NUMBER 13-10-00342-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


RUBEN PEÑA,                                                                  Appellant,

                                            v.

ERNIE HERNANDEZ,                                                             Appellee.


                   On appeal from the 444th District Court
                        of Cameron County, Texas.


                          MEMORANDUM OPINION

             Before Justices Rodriguez, Garza, and Benavides
                     Memorandum Opinion Per Curiam

       This is an appeal from an election contest filed by appellant Ruben Peña against

appellee Ernie Hernandez in connection with the Democratic Party primary run-off election

for Cameron County Commissioner, Precinct 2. By two issues, Peña argues that the trial

court erred by (1) denying him the opportunity to conduct certain discovery, and (2) denying
his request to enforce subpoenas for numerous witnesses who failed to appear at trial.

However, because we dismiss the appeal as moot, we do not reach its merits.

                                       I. BACKGROUND

       Having received the most votes out of six candidates for county commissioner in the

March 2, 2010 Cameron County Democratic Party primary, Peña and Hernandez faced

each other in the April 13, 2010 run-off election for the party's nomination. Hernandez won

the run-off election by forty-nine votes, and on April 22, 2010, the Cameron County

Democratic Party executive committee certified Hernandez's nomination.

       Peña filed his original petition contesting the election results on April 30, 2010. He

alleged that illegally solicited mail-in ballots were counted in favor of Hernandez and that

if those illegal votes were subtracted from Hernandez's vote total, Peña would have been

the winner. Peña prayed that the trial court declare him the winner of the run-off, and in

the alternative, if the trial court could not ascertain the true result of the run-off, it should

declare the election void and order a new election. A bench trial was held on June 2, 2010,

and on June 11, 2010, the trial court issued a judgment denying Peña's contest and

declaring Hernandez the Democratic nominee for the county commissioner seat.

       The complete record was filed with this Court on July 7, 2010, and Peña filed his

brief on August 5, 2010. Peña filed a motion to expedite the appeal on August 13, 2010,

which the Court granted. See TEX . R. APP. P. 40.1(c). Hernandez then requested an

extension of time for the filing of his brief, which was also granted by the Court, and he

thereafter filed his brief on September 9, 2010. The case was submitted as soon as was

practicable on September 16, 2010, which date was forty-seven days before the general

election.

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                                            II. DISCUSSION

       It is well-settled Texas law that, where a contest between candidates for nomination

in a party primary election cannot be tried and a final decree cannot be entered in time for

election officials to comply with the statutory deadlines for preparing for and conducting the

general election, the election contest becomes moot and the issues no longer justiciable.

Polk v. Davidson, 145 Tex. 200, 196 S.W.2d 632, 634 (1946); Taylor v. Nealon, 132 Tex.

60, 120 S.W.2d 586, 588 (1938); Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753, 760

(1932); Salazar v. Gonzalez, 931 S.W.2d 59, 60 (Tex. App.–Corpus Christi 1996, no writ);

Lerma v. Ramon, 760 S.W.2d 727, 730 (Tex. App.–Corpus Christi 1988, no writ); Smith v.

Crawford, 747 S.W.2d 938, 940 (Tex. App.–Dallas 1988, no writ); Moore v. Barr, 718

S.W.2d 925, 926 (Tex. App.–Houston [14th Dist.] 1986, no writ). This is true even when

the contestant may have good cause or grounds for the contest. Smith, 747 S.W.2d at 940

(citing Cummins v. Democratic Executive Comm., 97 S.W.2d 368, 369 (Tex. Civ.

App.–Austin 1936, no writ)). "And when a case becomes moot the only proper judgment

is one dismissing the cause." Polk, 196 S.W.2d at 633.

       In this case, the application period for voters to request mail-in ballots commenced

on September 3, 2010.            See Tex. Sec'y of State, Important 2010 Election Dates,

http://www.sos.state.tx.us/elections/voter/2010dates.shtml (last visited Sept. 16, 2010).

Under the election code, ballots could be mailed as early as forty-five days before the

election—here, September 18, 2010.1 See TEX . ELEC . CODE ANN . § 86.004(a) (Vernon

2010). In short, the start of the general election in Cameron County is imminent. See



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           The next business day would be Monday, Septem ber 20, 2010.

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Salazar, 931 S.W.2d at 60. Because we conclude that early voting by mail has effectively

begun and such a short period of time remains before the general election, a rendered or

remanded judgment in this cause would rob election officials of sufficient time to comply

with the statutory deadlines for preparing and conducting the general election. See id.; see

also Polk, 196 S.W.2d at 634. Any order entered by this Court at this late time would

interfere with the orderly process of this election.    See Smith, 747 S.W.2d at 940.

Accordingly, we conclude that the appeal is moot. See Polk, 196 S.W.2d at 633.

                                     III. CONCLUSION

       Given the circumstances under which this appeal is now before us, we have no

choice but to dismiss it as moot. See id. at 633-34. No motion for rehearing will be

entertained. See TEX . ELEC . CODE ANN . § 232.014(e) (Vernon 2010).



                                                               PER CURIAM

Delivered and filed the 20th
day of September, 2010.




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