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Davis v. Lewis

Court of Appeals of Texas, Tenth District, Waco
Jul 5, 2007
No. 10-07-00111-CV (Tex. App. Jul. 5, 2007)

Opinion

No. 10-07-00111-CV

Opinion delivered and filed July 5, 2007.

Appeal from the 66th District Court, Hill County, Texas, Trial Court No. 45128.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.


MEMORANDUM OPINION

Kenneth Davis and Joe Daniel appeal the dismissal of their election contest suit as untimely. The issue on appeal is whether, pursuant to the election code, the canvass for office was "complete" upon approval of the Commissioners' Court or upon approval of the minutes of the meeting which approved the count. We will deny.

We conduct a de novo review of a summary judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661, (Tex. 2005). To prevail on summary judgment motion, the movant must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). "[W]e take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Valence Operating Co., 164 S.W.3d at 661.

The November 2006 official results, approved by the Hill County Commission's Court on December 11, 2006, showed Justin Lewis defeating Davis for County Judge and Lee Harkins defeating Daniel for County Commissioner. Davis and Daniel filed suit contesting those results. Lewis and Harkins moved for summary judgment on the affirmative defense that the suit was not timely, which the trial court granted.

The parties do not dispute that Davis and Daniel filed suit thirty-two days after The Hill County Commissioners approved the corrected canvass count total from the general election. The Election Code requires that any election contest suit be filed within thirty days of the date of the official result of the election. TEX. ELECT. CODE ANN. § 232.008(b) (Vernon 2003). That official result date is the date the final canvassing authority "completes" the canvass. TEX. ELECT. CODE ANN. § 221.005. Davis and Daniel argue their suit was filed within thirty days of the approval of the minutes from the Commissioners' meeting at which the canvass totals were finalized and approval of those minutes make the canvass complete.

Their interpretation of the statute is without support. It is well settled that an order of the Commissioners' Court may be given effect despite the failure to record it in the minutes. Mecom v. Ford, 113 Tex. 109, 114, 252 S.W. 491, 494 (1923). It is not the recording in the minutes that gives validity to the court's action; rather, the minutes are evidence of the action. See Id.; see also Doherty v. San Augustine Indep. Sch. Dist., 178 S.W.2d 866, 869 (Tex.Civ.App.-Amarillo 1944, writ ref'd w.o.m.). The order approving the canvass count was valid, effective, and complete upon approval by the Commissioners' Court, and the approval of the minutes had no bearing on its completeness.

We overrule the sole issue on appeal and affirm the judgment of the trial court.

Affirmed


Summaries of

Davis v. Lewis

Court of Appeals of Texas, Tenth District, Waco
Jul 5, 2007
No. 10-07-00111-CV (Tex. App. Jul. 5, 2007)
Case details for

Davis v. Lewis

Case Details

Full title:KENNETH DAVIS AND JOE DANIEL, Appellants v. JUSTIN LEWIS AND LEE HARKINS…

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Jul 5, 2007

Citations

No. 10-07-00111-CV (Tex. App. Jul. 5, 2007)