In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-26-00280-CV
JOHN SELLARS, Appellant
V.
DUKE W. COON AND CITY OF CONROE, TEXAS, Appellees
On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 25-12-19763
MEMORANDUM OPINION
On July 10, 2026, John Sellars filed a notice of appeal from the trial court’s
Order Granting Defendants’ Mayor Duke Coon, In His Official Capacity, and City
of Conroe’s Motion to Strike Plaintiff’s First Amended Election Contest, signed on
April 13, 2026. On July 13, 2026, we questioned whether the appeal is an accelerated
appeal under Texas Election Code section 231.009. Both parties responded to our
letter, and the Appellees filed a motion to dismiss for lack of jurisdiction. The
underlying lawsuit involves an Original Election Contest filed by John Sellars in
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which Sellars asserts claims of unlawful acts leading up to the November 4, 2025,
special election on fifteen (15) different measures to amend the Conroe City Charter.
Appellees argue in their motion to dismiss that the appeal should be dismissed
for lack of jurisdiction. More specifically, Appellees contend that Texas Election
Code section 231.009 controls and that the language in that statute means the notice
of appeal had to be filed within the time governing an accelerated appeal, and the
notice of appeal was not timely filed. Tex. Elec. Code Ann. § 231.009 (“An election
contest has precedence in the appellate courts and shall be disposed of as
expeditiously as practicable.”). The Appellant contends that the language in section
231.009 of the Elections Code does not make this an accelerated appeal, and that the
notice of appeal was timely.
Appellate Rule 28.1 provides that “[a]ppeals from interlocutory orders (when
allowed by statute), appeals in quo warranto proceedings, appeals required by statute
to be accelerated or expedited, and appeals required by law to be filed or perfected
within less than 30 days after the date of the order or judgment being appealed are
accelerated appeals.” Tex. R. App. P. 28.1(a). So, we must decide whether the
language in section 231.009 of the Elections Code makes this matter an accelerated
appeal.
The Fifth Court of Appeals considered this very issue and concluded the
appellant failed to timely invoke appellate jurisdiction and dismissed the appeal in
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an opinion and judgment on which the Supreme Court denied petition for review
after ordering briefing on the merits. Launius v. Flores, 640 S.W.3d 631, 633-34
(Tex. App.—Dallas 2022, pet. denied). Launius filed a notice of appeal eighty-nine
days after the date the trial court signed the judgment. Id. at 636. Launius argued
that accelerating the appeal was discretionary under Election Code section 232.015.
The appellate court concluded that section 232.015 applies only to election contests
for office, not to contests on measures, and held section 231.009 applies to an
election contest on a measure. Id. at 634.
Next, the appellate court reasoned that because section 231.009 states that an
election contest “shall be disposed of as expeditiously as practicable[,]” the appeal
was accelerated for purposes of Rule 28.1(a) of the Texas Rules of Appellate
Procedure. The appellate court compared Election Code section 231.009 to section
27.008(b) of the Civil Practice and Remedies Code, which states that “[a]n appellate
court shall expedite an appeal or other writ, whether interlocutory or not, from a trial
court order on a motion to dismiss a legal action under Section 27.003 or from a trial
court’s failure to rule on that motion in the time prescribed by Section 27.005.” See
id. at 634-35; Tex. Civ. Prac. & Rem. Code Ann. § 27.008(b) (Texas Citizens
Participation Act “TCPA”) (citing case precedent holding that the insertion of “shall
expedite” in section 27.008 meant that an appeal from a final judgment under the
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TCPA is an accelerated appeal for purposes of applying the time limitations on
perfecting an appeal under Rule 28.1(a) of the Texas Rules of Appellate Procedure).
Sellars cites two cases that he argues support his argument that Election Code
section 231.009 is a discretionary statute and therefore appeals of election contests
on measures are not “appeals required by statute to be accelerated or expedited”
under Rule 28.1. Both cases are distinguishable because a different statute—Election
Code section 232.015—was at issue. See Tex. Elec. Code Ann. § 232.015(a) (“The
trial or appellate court may accelerate the appeal in a contest of a general or special
election in a manner consistent with the procedures prescribed by Section
232.014.”). The first case, Perez v. Treviño, was a contest on a candidate election
occurring after a runoff in a special election. See No. 13-17-00087-CV, 2017 Tex.
App. LEXIS 5718, at **12-13 (Tex. App.—Corpus Christi-Edinburg June 22, 2017,
no pet.) (mem. op). The court concluded the appellant retained the discretionary
authority to accelerate the appeal under Election Code section 232.015 as opposed
to mandatory acceleration under Election Code section 232.014. The second case,
Lunceford v. Craft, was an appeal from an election contest from a general election
for a judicial office. See No. 01-23-00921-CV, 2026 Tex. App. LEXIS 995, at **2-3 (Tex. App.—Houston [1st Dist.] Feb. 3, 2026, no pet.). The Lunceford court
concluded that Election Code section 232.015 made acceleration discretionary in
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general election contests for office. See id. Chapter 232 of the Election Code does
not apply to election contests on measures, making Perez and Lunceford inapposite.
Appellant also argues Election Code section 231.009 is not a statute requiring
an appeal to be accelerated or expedited because the Supreme Court of Texas
considered the merits of an election contest on a measure in a regular appeal in Dacus
v. Parker, 466 S.W.3d 820, 823 (Tex. 2015). In Dacus, the Court reviewed whether
a ballot proposition for a proposed city charter amendment meets the common law
standard preserving the integrity of the ballot. Id. at 822. The Court concluded the
ballot language failed to substantially identify the amendment’s chief features,
reversed the court of appeals, and remanded the case to the trial court. Id. at 822-23.
We cannot speculate upon the reasons the Supreme Court addressed the merits
of the issues presented by the petition for review in Dacus. Neither party, nor the
Supreme Court discussed whether the appeal was an accelerated appeal under
section 231.009. The only issue of jurisdiction that is discussed in the Court’s
opinion in Dacus is whether there was a conflict between decisions of the courts of
appeals so that the Supreme Court had jurisdiction to review the decision under
former Government Code section 22.225(b)(2). Id. at 823; See also Act of May 17,
1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1720, 1731 (codified at
Tex. Gov’t Code § 22.225(c)) (amended 2003), repealed by Act of May 19, 2017,
85th Leg., R.S., ch. 150, § 4, 2017 Tex. Gen. Laws 291, 292.
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Likewise, we cannot speculate on the reasons the Texas Supreme Court
denied the petition for review in Launius. We note that it did so, however, after
ordering briefing on the merits on the very issue presented here, and the Launius
court’s analysis and application of Election Code section 231.009 to accelerate the
appeal under Texas Rule of Appellate Procedure 28.1(a) pre-dates this election
contest.
We adopt the reasoning in Launius and conclude that the final order
challenged in this appeal is an appeal “required by statute to be accelerated or
expedited[.]” See Tex. R. App. P. 26.1(b), 28.1(a). Sellars filed his notice of appeal
outside the time allowed for perfecting an accelerated appeal. See id. 26.1(b), 26.3.
We grant Appellees’ motion to dismiss and dismiss the appeal.
APPEAL DISMISSED.
PER CURIAM
Submitted on September 16, 2026
Opinion Delivered September 17, 2026
Before Golemon, C.J., Johnson and Wright, JJ.
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DISSENTING OPINION
I respectfully dissent. I do not find the reasoning in Launius v. Flores, 640
S.W.3d 631, 633-34 (Tex. App.—Dallas 2022, pet. denied) to be persuasive or
controlling. Rather, the language in the Civil Practice and Remedies Code section
27.008(b) is distinguishable from the language contained in Election Code section
231.009. The former clearly requires the appellate court “shall expedite” the appeal
from the denial of a motion to dismiss under the Texas Citizens Participation Act
(TCPA), whether the appealed order is interlocutory or final.
In contrast, Election Code section 231.009 does not contain words of a
mandatory nature, nor does it say a final order in an election contest “shall” or
“must” be expedited. Instead, section 231.009 uses language that I construe as
discretionary because it directs that the disposition of an appeal of an election contest
on a measure be accomplished by the appellate court “as expeditiously as
practicable.” The Legislature has stated the purpose of the Election Code:
It is the intent of the legislature that the application of this code and the
conduct of elections be uniform and consistent throughout this state to
reduce the likelihood of fraud in the conduct of elections, protect the
secrecy of the ballot, promote voter access, and ensure that all legally
cast ballots are counted. Added by Acts 2021, 87th Leg., 2nd C.S., Ch.
1 (S.B. 1), Sec. 1.04, eff. December 2, 2021.
Election Code Chapter 1 - Section 1.0015 — Legislative Intent,
https://statutes.capitol.texas.gov/Docs/EL/htm/EL.1.htm#1.0015 (accessed May 26,
2025)).
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We are reminded by our sister Court in San Antonio of the long-held view of the
legislative purposes of the Election Code in Barrera v. Garcia:
Fugate v. Johnston, 251 S.W.2d 792 (Tex. Civ. App.—San Antonio
1952, no writ), stated that the aim of the Election Code is to safeguard
the purity of the ballot box and at the same time to see that the will of
the people shall prevail. The purpose of the Code is to prohibit error,
fraud, mistake, and corruption, and yet it may not be used as an
instrument of disfranchisement for irregularities of procedure. Since the
will of the legal voters as expressed at the polls is the matter of
paramount concern, and, in the absence of any showing of fraud, or
reasonable indication that such will has not been fairly expressed and
the evidence thereof properly preserved, the courts have been liberal in
construing and enforcing as directory only the provisions of the election
laws which are not upon their face clearly mandatory. Id. at 793[]
(citing Prado v. Johnson, 625 S.W.2d 368, 369-70 (Tex. Civ. App.—
San Antonio 1981, writ dism’d)).
Barrera v. Garcia, No. 04-12-00469-CV, 2012 Tex. App. LEXIS 7899, **6-7 (Tex.
App.—San Antonio Sept. 19, 2012, no pet.) (mem. op.).
I agree with the San Antonio court’s proposition that the will of the legal voters
as expressed at the polls is the matter of paramount concern—not the speed of the
decision.
The Election Code conditions the word “expeditiously” with the phrase “as
practicable.” Practicable means “that which may be done, practiced, or
accomplished; that which is performable, feasible, possible; and the adverb
practicably means in a practicable manner. Practicable and Practicably, BLACK’S
LAW DICTIONARY (4th Ed. 1951, p. 1335). It directs us to no particular section of
the rules of appellate procedure designating the deadlines for “filing notice of
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appeal.” This suggests to me that the Court of Appeals should give these appeals
priority over regular appeals since election results on things such as city charter
amendments or bond issues, although not urgent, are hanging in the balance. But
there is no urgency as in a primary election where a position on the November ballot
is waiting to be determined (hence the accelerated appellate deadlines in section
232.014). The Legislature’s failure to recite the same wording and procedures in
231.009 is an additional indicator of their intention to treat 231.009 appeals as
ordinary appeals.
In contrast, the TCPA specifically directs that any appeal “shall be expedited”
from an “order on a motion to dismiss a legal action under Section 27.003 or from a
trial court’s failure to rule on that motion in the time prescribed by Section 27.005[,]”
which requires a ruling by the trial court within thirty days of the hearing by which
time the motion, if not granted, is considered denied and appealable, whether by
interlocutory appeal, or otherwise. See Tex. Civ. Prac. & Rem. Code Ann. §
27.008(b). The Legislative intent behind the TCPA states:
The purpose of this chapter is to encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely,
and otherwise participate in government to the maximum extent
permitted by law and, at the same time, protect the rights of a person to
file meritorious lawsuits for demonstrable injury.
Act of May 18, 2011, 82nd Leg., R.S., ch. 341 § 2, General and Special Laws of
Texas 961, 962 (amended June 17, 2011).
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More specifically, the Supreme Court in In re Lipsky said “[T]he TCPA’s purpose
is to identify and summarily dispose of lawsuits designed only to chill First
Amendment rights, not to dismiss meritorious lawsuits. See Tex. Civ. Prac. & Rem.
Code § 27.002.” 460 S.W.3d 579, 589 (Tex. 2015); and see Leach v. Schwartz, 645
S.W.3d 906, 908 (Tex. App.—El Paso 2022, no pet.). In the TCPA, the paramount
purpose appears to be summary disposition of lawsuits that currently chill First
Amendment speech. Hence, the accelerated appeal requirement is expressed in the
statute with the words “shall be expedited.”
When determining legislative intent based upon the wording used in a statute,
we are directed to prior rulings of the Supreme Court in City of Rockwall v. Hughes:
Statutory construction is a legal question we review de novo. In
construing statutes, we ascertain and give effect to the Legislature’s
intent as expressed by the language of the statute. See State v. Shumake,
199 S.W.3d 279, 284 (Tex. 2006). We use definitions prescribed by the
Legislature and any technical or particular meaning the words have
acquired. TEX. GOV’T CODE § 311.011(b). Otherwise, we construe
the statute’s words according to their plain and common meaning,
Texas Department of Transportation v. City of Sunset Valley, 146
S.W.3d 637, 642 (Tex. 2004), unless a contrary intention is apparent
from the context, Taylor v. Firemen’s and Policemen’s Civil Service
Commission of City of Lubbock, 616 S.W.2d 187, 189 (Tex. 1981), or
unless such a construction leads to absurd results. Univ. of Tex. S. W.
Med. Ctr. v. Loutzenhiser,140 S.W.3d 351, 356 (Tex. 2004); see also
Tex. Dep’t of Protective and Regulatory Servs. v. Mega Child Care,
Inc.,145 S.W.3d 170, 177 (Tex. 2004) (noting that when statutory text
is unambiguous, courts must adopt the interpretation supported by the
statute’s plain language unless that interpretation would lead to absurd
results).
246 S.W.3d 621, 625-626 (Tex. 2008).
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In my opinion, the phrase “expeditiously as practicable” does not mean the
same thing as “shall expedite an appeal or other writ . . . .” Otherwise, if the
Legislature intended it to have the same meaning, it would have used the same words
in section 231.009 as it has written in section 232.014 of the Election Code to make
the legislative intent clear and unambiguous. Therefore, I conclude that an appeal
from an election contest on a measure is not an appeal required by statute to be
accelerated or expedited for purposes of Rule 28.1 of the Texas Rules of Appellate
Procedure.
I would therefore deny the Motion to Dismiss.
JAY WRIGHT
Justice
Dissent Delivered September 17, 2026
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