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Despite judge’s ruling, Precinct 3 election lawsuit continues

Weeks after a visiting judge dismissed a lawsuit requesting a new election for the Democratic nominee for Hidalgo County Precinct 3, outgoing commissioner Jose “Joe” Flores continues to appeal the judge’s decision.

On Wednesday, an attorney representing Everardo “Ever” Villarreal, filed a motion to dismiss Flores’ latest appeal in the 13th Court of Appeals, citing a lack of jurisdiction.

Hidalgo County Precinct 3 Commissioner Jose “Joe” Flores and Everardo “Ever” Villarreal.

The motion to dismiss came after Flores’ second notice to appeal visiting Judge Jose Manuel Bañales’ dismissal for Flores’ request to hold a trial to contest the results of the March 2020 Democratic Primary in the race for Hidalgo County Precinct 3 commissioner.

In that election, Villarreal beat Flores in the primary by 92 votes. As Villarreal has no Republican challenger in the November 2020 general election, he is the commissioner elect

Citing more than 1,000 illegal votes, Flores filed the lawsuit after the March Democratic Party primary election and requested that the results be declared void and a new election be held.

The case was originally set to begin in April before it got postponed to July due to the COVID-19 pandemic and the case has dragged on ever since.

Bañales ended up dismissing the lawsuit earlier this month in a pre-trial hearing after ruling that eight of the votes in the election were illegal votes for Villarreal and found that not enough illegal votes were found to sway the results of the election.

“Obviously we disagree with the judge’s decision,” Flores attorney, Orlando Garcia said previously. “We know the voters voted illegally and who those votes were for.”

Flores filed an appeal July 16, the day after Bañales’ dismissal which the visiting judge held the following Monday, requesting the 13th Court of Appeals steps in on the election contest.

“This is an accelerated appeal pursuant to Texas Election Code section 232.014,” the appeal reads. “Additionally, this appeal takes precedence in the appellate court pursuant to Texas Election Code section 231.009.”

In a hearing for the appeal made last week, Bañales found 18 more illegal votes for Villarreal.

“The evidence is there, there’s a procedural morass that has been creative by COVID-19 and our inability to properly prosecute and investigate the case because of lockdowns but the evidence is there,” Garcia said. “We still have another 780 votes, [Villarreal] is winning by default, he’s not the true winner of the election.

In response, Javier Peña-the attorney representing Villarreal – filed a motion to dismiss the new appeal Wednesday, citing the impossibility of holding a fair trial with the accelerated briefing schedule Flores requested, which requires that ballots for the November general election must be prepared by next month.

“There is simply no way for Flores to obtain relief from this Court from the summary judgment order, conduct the expected three-week trial, and allow for the completion of appellate proceedings from any judgment rendered after trial, in the amount of time remaining before ballots must be printed,” the motion to dismiss reads. “Thus, this contest is moot.”

Flores also failed to file a bond or ask the trial court to set a bond amount within five days of filing the appeal as required by Texas Election Code, which was required to perfect the appeal according to the motion to dismiss.

“The Joe Flores team has delayed and blown another deadline by failing to perfect their appeal and allowing their case to become moot,” Peña said in a statement. “They lacked the evidence, they lacked integrity, and they have now allowed too much time to pass.”  

When reached for comment, Garcia dismissed Peña’s arguments.

“It’s a frivolous red herring meant to distract the court from the pressing matter of the appeal,” Garcia said in a text message sent Thursday. 

Garcia added that he will file a response to the latest motion to dismiss the appeal by Thursday afternoon and expects a response from the 13th Court of Appeals by Friday.

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