Patrick Simpson v. City of San Antonio, Texas ( 2010 )

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PATRICK SIMPSON,                             Appellant, v. THE CITY OF SAN ANTONIO, TEXAS,                             Appellee.

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No. 08-10-00229-CV Appeal from the  County Court at Law No. 3 of Bexar County, Texas (TC# 121,242)

MEMORANDUM OPINION

            Pending before the Court is Appellant’s motion to dismiss this appeal pursuant to Tex.R.App.P. 42.1(a)(1). Appellant represents that he no longer wishes to pursue the appeal, and requests that the Court enter an order dismissing the appeal without prejudice. In accordance with our Rule 42.1(a)(1), we will grant the motion as to Appellant’s request for dismissal. The motion will be denied, in part, as to Appellant’s request that the appeal be disposed of “without prejudice.”

            On an appellant’s motion, an intermediate court of appeals is authorized to “dismiss the appeal or affirm the appealed judgment or order unless disposition would prevent a party from seeking relief to which it would otherwise be entitled.” Tex.R.App.P. 42.1(a)(1). The Rule does not permit this Court to dismiss an appeal, “without prejudice to the refiling.” Accordingly, as Appellee has not objected to the motion, and there is no indication that dismissal would prevent the parties from seeking relief to which it would otherwise be entitled, Appellant’s motion to dismiss is GRANTED. See Tex.R.App.P. 42.1(a)(1). Appellant’s request that the appeal be dismissed “without prejudice” is DENIED.

September 22, 2010

DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.