in Re John Doe ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00108-CV
IN RE JOHN DOE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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Appellant, identified using the pseudonym “John Doe,” appeals from the
trial court’s order denying his motion to enforce an expunction order. We will
dismiss the appeal for lack of jurisdiction.
Based on events that occurred on March 19, 2009, the Flower Mound
Police Department arrested Doe, and the Denton County District Attorney’s office
brought two criminal charges against him. The first charge was for disorderly
conduct. The 158th District Court in Denton County (hereinafter “the expunction
court”) ordered the expunction of all records and files related to this first charge.
The Denton County District Attorney’s office, however, continued to prosecute
Doe in Denton County Criminal Court No. 1 for the second charge, which was not
expunged. Doe alleges that during a pretrial hearing in Criminal Court No. 1,
Denton County prosecutor Dustin Gossage violated the expunction court’s order
by producing an expunged document.
Doe filed a motion to enforce the expunction order and sought a finding
holding Gossage in contempt in the expunction court.1 In his motion to enforce,
Doe requested that the expunction court conduct an evidentiary hearing so that
Doe could “demonstrate the wrongful conduct on the part of prosecutor Gossage
and such other parties who have acted in violation of this Court’s [expunction
o]rder.” The expunction court denied Doe’s motion to enforce without an
evidentiary hearing.2 This appeal followed.
Even if not raised by the parties, we may not ignore a lack of appellate
jurisdiction. See N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679
(Tex. 1990); McCauley v. Consol. Underwriters, 157 Tex. 475, 478, 304 S.W.2d
265, 266 (1957). “Courts always have jurisdiction to determine their own
jurisdiction.” Houston Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 152
(Tex. 2007).
1
The expunction court assigned Doe’s motion to enforce a new cause
number.
2
The trial court did, however, conduct a preliminary hearing regarding
whether to proceed with contempt. The trial court concluded that, rather than
holding a civil contempt hearing, a criminal investigation by the Texas Rangers
was the appropriate next step in the process.
2
Generally, appeals may be taken only from final judgments. See Lehmann
v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Appeals may be taken from
some types of orders when such an appeal is statutorily authorized. See, e.g.,
Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2012). Most post-
judgment orders made for the purpose of enforcing or carrying into effect an
already-entered judgment are not subject to an appeal because an appeal is
typically not statutorily authorized from such an order and because such orders
are typically not final judgments or decrees. See, e.g., Wagner v. Warnasch, 295
S.W.2d 890, 893 (Tex. 1956); Bahar v. Lyon Fin. Servs., Inc., 330 S.W.3d 379,
385 (Tex. App.—Austin 2010, pet. denied) (citing Schultz v. Fifth Judicial Dist.
Court of Appeals, 810 S.W.2d 738, 740 (Tex. 1991), abrogated on other grounds
by In re Sheshtawy, 154 S.W.3d 114, 124–25 (Tex. 2004) (orig. proceeding));
State Office of Risk Mgmt. v. Berdan, 335 S.W.3d 421, 428 (Tex. App.—Corpus
Christi 2011, pet. denied); Kennedy v. Hudnall, 249 S.W.3d 520, 523 (Tex.
App.—Texarkana 2008, no pet.). When, however, a post-judgment order acts in
the nature of a mandatory injunction that resolves property rights, it may be
appealable. See, e.g., Shultz, 810 S.W.2d at 740 (holding that turnover order
that resolved property rights and acted “in the nature of a mandatory injunction”
was appealable). For anything other than what could properly be characterized
as a final judgment, a post-judgment order in the nature of a mandatory
injunction, or an order subject to a statutorily authorized appeal, mandamus is
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the proper form to obtain review of a trial court’s orders. See In re Amaya, 34
S.W.3d 354, 356 (Tex. App.—Waco 2001, orig. proceeding).
Here, the original judgment is the expunction order. The expunction court
later signed an order denying Doe’s motion to enforce the expunction order; it is
this latter order, made in the course of Doe’s efforts to enforce the already-signed
original judgment, that is being appealed. This order is not a final judgment. The
order does not act in the nature of a mandatory injunction, nor is it subject to a
statutorily authorized appeal. Thus, it is not appealable.3 See Wagner, 295
S.W.2d at 893; see also Berdan, 335 S.W.3d at 428 (holding that trial court’s
order to enforce award of attorney’s fees did not “act in the nature of a mandatory
injunction” and thus, was not appealable); Transam. Life Ins. Co. v. Rapid
Settlements, Ltd., No. 01-11-00240-CV, 2011 WL 5428974, at *2 (Tex. App.—
Houston [1st Dist.] Nov. 10, 2011, no pet.) (mem. op.) (holding that order denying
Transamerica’s motion to allow offset of payment of an annuity was an order
made under the trial court’s authority to enforce an already-entered judgment).
Because the order denying Doe’s motion to enforce the expunction order is not
appealable, we lack jurisdiction to consider this appeal. If we lack jurisdiction
over an appeal, our only option is to dismiss the appeal. See Kilroy v. Kilroy, 137
S.W.3d 780, 783 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
3
Doe’s brief does not request that his appeal be considered, in the
alternative, as a petition for writ of mandamus, nor has he filed a petition for writ
of mandamus separate from his appeal.
4
We therefore dismiss this appeal for lack of jurisdiction.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
DELIVERED: March 28, 2013
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