Opinion
NO. 01-18-00040-CV
07-17-2018
REGINALD GRANT, JR., Appellant v. DAN HUBERTY, Appellee
On Appeal from the 189th District Court Harris County, Texas
Trial Court Case No. 2017-84457
MEMORANDUM OPINION
Appellant, Reginald Grant, Jr., appeals from a final judgment in favor of appellee, Dan Huberty, declaring Grant ineligible to run in the 2018 Republican primary for the seat of Texas House of Representative, District 127. Huberty has moved to dismiss the appeal as moot because Grant subsequently lost in the primary and the deadline for contesting the election results has passed. More than 10 days have passed and Grant did not respond to the motion to dismiss. See TEX. R. APP. P. 10.3(a). We grant the motion and dismiss the appeal.
Background
On January 19, 2018, the trial court issued a final judgment in favor of Huberty, declaring Grant ineligible to run in the 2018 Republican primary for the seat of Texas House of Representative, District 127 because "he failed to meet the residency requirement under § 141.001(a)(5) of the Election Code as a matter of law." Grant filed an appeal on the same day that suspended the judgment and allowed him to run in the primary. See TEX. ELEC. CODE § 232.016 ("The perfecting of an appeal in an election contest suspends the execution of the district court's judgment pending the disposition of the appeal without the necessity for a supersedeas bond."). Grant ran in the primary held on March 6, 2018 and lost to Huberty. The Harris County Republican Chair certified the primary election results on March 15, 2018.
Analysis
Huberty's motion to dismiss this appeal asserts that the issue on appeal—whether Grant was eligible to run in the primary—is moot. Specifically, Huberty asserts that there is no longer a live controversy regarding Grant's eligibility to run because (1) Grant lost the primary and (2) the deadlines for contesting or challenging the election results have passed. See TEX. ELEC. CODE § 212.028 (petition for initial recount must be filed by later of 5 days after election or second day after canvassing authority completes its canvass of original election returns); § 232.008(c) (primary election contest must be filed within 10 days after official result). We agree. Because we conclude that any ruling by our court on Grant's eligibility would not affect any parties' rights, we grant Huberty's motion to dismiss the appeal as moot.
Appellate courts lack jurisdiction to decide moot controversies and render advisory opinions. Nat'l Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). A justiciable controversy between the parties must exist at every stage of the legal proceedings, including the appeal, or the case is moot. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). "A case becomes moot if, since the time of filing, there has ceased to exist a justiciable controversy between the parties—that is, if the issues presented are no longer 'live,' or if the parties lack a legally cognizable interest in the outcome." Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). The same is true if an appellate court's judgment cannot have any practical legal effect upon a then existing controversy. See Zipp v. Wuemling, 218 S.W.3d 71, 73 (Tex. 2007) ("An appeal is moot when a court's action on the merits cannot affect the rights of the parties.").
Even if Grant were to prevail on appeal, reversing the trial court's decision regarding Grant's eligibility to run cannot affect either parties' rights because Huberty won the election and the deadline to contest the results has passed. In other words, the appeal is moot because "no order that [this court] might enter would be effective to change [the] result" of the election. See Brimer v. Maxwell, 265 S.W.3d 926, 928-29 (Tex. App.—Dallas 2008, no pet.) (holding challenge to have candidate removed from ballot was moot because it was too late to remove candidate's name from ballot).
Accordingly, this appeal is moot and we dismiss the appeal for lack of jurisdiction. We dismiss any pending motions as moot.
PER CURIAM Panel consists of Justices Keyes, Bland, and Massengale.