Opinion
NUMBER 13-20-00252-CV
07-08-2020
EVERARDO "EVER" VILLARREAL, Appellant, v. JOSE "JOE" FLORES, Appellee.
On Appellant's Emergency Motion to Enforce Automatic Stay Under Texas Civil Practice and Remedies Code Section 51.014(b) and Appellee's Emergency Motion to Dismiss for Lack of Jurisdiction
ORDER
Before Chief Justice Contreras and Justices Benavides and Longoria
Order Per Curiam
This is an appeal of the denial of a motion to dismiss under the Texas Citizens Participation Act (TCPA). See TEX. CIV. PRAC. & REM. CODE ANN. ch. 27. The underlying suit is an election contest concerning the 2020 Democratic primary election for Hidalgo County Commissioner Precinct 3. The cause is before the Court on (1) appellant Everardo "Ever" Villarreal's "Emergency Motion to Enforce Automatic Stay Under Texas Civil Practice and Remedies Code Section 51.014(b)" and (2) appellee Jose "Joe" Flores's "Emergency Motion to Dismiss for Lack of Jurisdiction."
Texas Civil Practice and Remedies Code § 51.014 provides that an interlocutory order denying a TCPA motion to dismiss may be immediately appealed. Id. § 51.014(a)(12). When such an appeal is perfected, the trial and "all other proceedings in the trial court" are automatically stayed pending resolution of the appeal. Id. § 51.014(b). Appellant represents in his motion that the trial court has set a status hearing for July 8, 2020, at 1:30 p.m., in violation of the automatic stay. Appellee argues in his motion that we lack jurisdiction over the appeal because appellant did not file his notice of appeal within five days of the trial court's order. See TEX. ELEC. CODE ANN. § 232.014(b) (providing that, in a primary election contest, "[t]o be timely, an appellant's bond, affidavit, or cash deposit for costs of appeal must be made not later than the fifth day after the date the district court's judgment in the contest is signed" and "[i]f the appellant is not required to give security for the costs of appeal, the notice of appeal must be filed by the same deadline.").
Having reviewed the motions and the record documents filed by the parties, we conclude that appellant's motion to enforce stay is meritorious and appellee's motion to dismiss is not. The provision in the election code requiring an accelerated notice of appeal applies only to an appeal of a "judgment in the contest," which we construe to mean a final judgment. See id. The order on appeal here is not a final judgment in a primary election contest; rather, it is an interlocutory order denying a TCPA motion to dismiss. Therefore, appellant's notice of appeal was timely and the automatic stay applies.
We GRANT appellant's motion to enforce stay and DENY appellee's motion to dismiss the appeal. All underlying proceedings in trial court cause number C-1121-20-I, including the scheduled July 8, 2020 hearing, are hereby STAYED until this appeal is resolved or until further order of this Court. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b). Any motions filed but not explicitly ruled upon herein shall remain pending.
IT IS SO ORDERED.
PER CURIAM Delivered and filed the 8th day of July, 2020.