Service of process deadline for election contest deemed non-jurisdictional by First Court of Appeals in Houston

City of Houston and Annise D. Parker v. Phillip Paul Bryant and James Scarborough,01-16-00273-CV( Tex.App— Dallas, January 12, 2017)

This is an election contest case where the First Court of Appeals out of Houston held Texas Election Code §233.008 (requiring process be served within 20 days) is not jurisdictional.

Petitioners challenge a ballot measure concerning term limits for City of Houston elective offices. The City filed a plea to the jurisdiction asserting that while the petition was timely filed and the City received service to the correct person, it did not receive service within the 20 days mandated by §233.008.  Therefore, the trial court was without jurisdiction. The trial court denied the plea and the City appealed.

The Court of Appeals held the thirty-day deadline by which the petition must be filed under §233.006(b) is jurisdictional and non-waivable.  It is undisputed the election contest was filed within that deadline.  Thus, according to the court, the trial court obtained subject-matter jurisdiction at that time. Section 233.008 is clearly mandatory, in that it provides that a citation issued in an election contest “must direct” the officer to return the citation unserved if it is not served within twenty days after it was issued.  However, “just because a statutory requirement is mandatory does not mean that compliance with it is jurisdictional.” Section 233.008 does not require a time to effectuate service and is not expressly jurisdictional.  It does not prohibit the reissuance of a citation or preclude a party from making a second attempt.  It also does not list a specific consequence for non-compliance.  As a result, it is not jurisdictional.   And while “other consequences” may be the result of failing to follow a non-jurisdictional deadline, such is not for evaluation under a plea to the jurisdiction.

If you would like to read this opinion click here. The Panel includes Justice Jennings, Justice Keyes, and Justice Brown. Justice Keyes delivered the opinion of the court. Attorney for the City: Collyn A. Peddie. Attorney for the Appellee: Joseph Synoradzki and Eric B. Dick