William MacOn v. TDCJ-ID ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00150-CV
WILLIAM MACON,
Appellant
v.
TDCJ-ID, ET AL,
Appellees
From the 278th District Court
Walker County, Texas
Trial Court No. 24,659
DISSENTING OPINION
The problem presented in this appeal is a recurring problem in inmate litigation
against State employees and the State: After suit is brought, some defendants are
served and some are not; a dismissal of some defendants is granted—maybe even of all
the defendants that have been served; and then an appeal. The question we must first
decide is whether we have jurisdiction of the appeal.
JURISDICTION AS AN INTERLOCUTORY APPEAL?
The Court relies on Fuller to hold that as an interlocutory appeal, we have no
jurisdiction to review the trial court’s order/judgment of dismissal. See Fuller v. Moya,
No. 10-09-00294-CV, 2009 Tex. App. LEXIS 9596 (Tex. App.—Waco Dec. 16, 2009, no
pet.) (mem. op.). This is based upon the Court’s determination, in reliance on Fuller,
that the judgment is not final. Even if the judgment is not final, we nevertheless have
jurisdiction of this proceeding as an interlocutory appeal expressly authorized by
statute. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2011). The served
defendants filed a plea to the jurisdiction requesting a dismissal of the case pursuant to
section 101.106(f) of the Texas Civil Practice and Remedies Code. Id. § 101.106(f) (West
2011). An interlocutory appeal is permitted from an order which either grants or denies
a plea to the jurisdiction by a governmental unit. Id. § 51.014(a)(8) (West Supp. 2011).
To give the phrase "grants or denies" its full effect, section 51.014(a)(8) must allow an
appeal to be filed by both a non-governmental plaintiff challenging the grant of a plea
to the jurisdiction and a governmental defendant challenging the denial of one. Tex.
A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 843 (Tex. 2007). Further, State officials or
employees may file a plea to the jurisdiction and may appeal its denial pursuant to
Section 51.014(a)(8). See id. at 844-845. Because Macon is appealing from the trial
court’s order granting the defendants’ plea to the jurisdiction brought by a
governmental unit, Macon is permitted, by statute, to appeal that interlocutory order.
Macon v. TDCJ Page 2
JURISDICTION AS AN APPEAL OF A FINAL JUDGMENT?
We would also have jurisdiction of this appeal if it is an appeal of a final
judgment. On this issue, I agree with the Court that the text of the order is not always
determinative of the legal analysis of finality. Further, I agree that what happens after
the order of dismissal, specifically the conduct of the parties and the trial court, is
important to the analysis but also is not necessarily determinative. For example in one
of our cases, Fuller, mentioned above and relied upon by the Court, the defendants that
had been served before the dismissal order was rendered answered and the
plaintiff/inmate continued to have other defendants served and continued to prosecute
his case in the trial court against the other defendants. The order of dismissal in that
proceeding did not have any indication of finality as to the other defendants or the
intent to address the entire relief requested in the proceeding. The dismissal order
simply dismissed the suit as against the two defendants that had been served and had
filed a motion to dismiss. In what could be characterized as an abundance of caution,
the inmate, Fuller, also filed an appeal which we dismissed because we determined we
had no jurisdiction of the interlocutory appeal because we determined that based on the
wording of the order of dismissal and the subsequent activity of the parties and the trial
court, the trial court did not intend the dismissal order of only some of the defendants
to be a final judgment in the trial court proceeding. Id. at *2-3.
Macon v. TDCJ Page 3
This proceeding, however, is different. Like Fuller, in this proceeding all the
defendants that had been served were dismissed. Unlike Fuller, the trial court’s order
contains language that indicates finality; a version of the traditional Mother-Hubbard
clause. And also unlike Fuller, Macon’s subsequent conduct indicates that he believes
the judgment is final and he does not intend to take any further action in the trial court
until the appeal is resolved. Specifically, the only defendant not served is a named
building owned by TDCJ, and Macon contends that the clerk erred in not properly
effecting service.
Macon has thus indicated by his conduct and his complaint on appeal that he is
going to take no further action in the trial court to serve the remaining defendant. If
this appeal is dismissed, the matter will sit on the trial court’s docket with nothing for
the trial court to rule upon or decide. Presumably, it will sit there until one of the
parties takes some additional action, although what that action may be is not clear, or
until it is dismissed for want of prosecution.
It is clear that the parties believe that the trial court intended a final judgment.
The judgment is labeled “ORDER OF DISMISSAL AND FINAL JUDGMENT” and ends
with the order that: “The court denies all relief not expressly granted in this judgment.”
Therefore, the judgment disposes of every defendant that was served and all the relief
requested. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Macon’s issue
Macon v. TDCJ Page 4
on appeal is whether the clerk erred in some manner in connection with failing to
effectuate service on the remaining named defendant.1
Based on the facts in this proceeding I would hold that the trial court intended a
final judgment and that the judgment is final for purposes of appeal and proceed to
address the legal merits of Macon’s issue on appeal since the briefs on the merits have
already been filed.
CONCLUSION
Accordingly, I respectfully dissent from the determination that we have no
jurisdiction of this appeal.
TOM GRAY
Chief Justice
Dissenting Opinion issued and filed May 23, 2012
1 Macon apparently contends in the alternative in his brief that the remaining defendant was actually
served.
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