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Andre Joel Howard v. Harris County Hospital District and TWCC ( 2006 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00488-CV
Andre Joel Howard, Appellant
v.
Harris County Hospital District and TWCC, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-05-003705, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
MEMORANDUM OPINION
Andre Joel Howard, acting pro se, attempts to appeal from the trial court’s denial of
his motion for summary judgment, grant of appellee’s special exceptions, and declaration that he is
a frivolous litigant. In general, appeals may be prosecuted only from a final judgment. Lehmann v.
Har-Con Corp.,
    39 S.W.3d 191
    , 195 (Tex. 2001). Howard does not attempt to appeal from a final
judgment.
The district court declared appellant a frivolous litigant. See Tex. Civ. Prac. & Rem.
Code Ann. § 11.051 (West 2002). The court expressly found that there was not a reasonable
probability that Howard would prevail and that he met the test for the numbers of lawsuits filed
during the preceding seven-year period. See
    id. § 11.054(1)(A). 
    The order set a bond in order for
Howard to proceed. See
    id. § 11.055. 
    Neither Chapter 11 of the civil practice and remedies code
nor section 51.0141 of that code provides for an appeal from this type of order. See
    id. §§ 1.001- 
    .014; 51.014 (West Supp. 2005).
The court granted Harris County Hospital District’s special exceptions that it lodged
against Howard’s pleadings. When special exceptions are granted, a litigant has two options: amend
the pleadings or stand on the pleadings as filed, proceed to judgment, and test the pleadings on
appeal. Tex. R. Civ. P. 90, 91; Ford v. Performance Aircraft Servs., Inc.,
    178 S.W.3d 330
    , 336 (Tex.
App.—Fort Worth 2005, pet. denied); Butler Weldments Corp. v. Liberty Mut. Ins. Co.,
    3 S.W.3d 654
    , 658 (Tex. App.—Austin 1999, no pet.). However, the simple grant of special exceptions with
an opportunity to amend is an unappealable interlocutory matter. Similarly, the simple denial of a
motion for summary judgment, as opposed to the grant and denial of cross-motions for summary
judgment, is an interlocutory matter that is not appealable. See City of Garland v. Dallas Morning
News,
    22 S.W.3d 351
    , 356 (Tex. 2000); Williams v. Texas State Bd. of Orthotics & Prosthetics,
    150 S.W.3d 563
    , 567 (Tex. App.—Austin 2004, no pet.).
1
Section 51.014 enumerates various categories of interlocutory appeals.
2
Howard has attempted to appeal only matters for which no interlocutory appeal lies.
Accordingly, we have no jurisdiction over this attempted appeal and must dismiss the appeal for
want of jurisdiction. Tex. R. App. P. 42.3(a).
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Dismissed for Want of Jurisdiction
Filed: September 7, 2006
3