











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00098-CV
______________________________


ANGEL M. VACCA, Appellant
 
V.
 
ZELDA GLASS, ET AL., Appellees


                                              

On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 01C0457-202


                                                 



Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross


O P I N I O N

          Angel M. Vacca, an inmate currently residing in the Barry Telford Unit in New
Boston, Texas, sued several prison guards and administrators for causing Vacca to be
disciplined for an infraction he contends was contrived against him in retaliation for his
initiating a federal lawsuit.  Vacca's amended petition named Zelda Glass, Ronald
Farrington, and Jonathan R. Rayburn as defendants.  The trial court dismissed Vacca's
lawsuit after finding Vacca's petition had failed to satisfy the requirements set forth in
Chapter 14 of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem.
Code Ann. § 14.004 (Vernon 2002) (inmate who proceeds in forma pauperis must file with
petition (a) affidavit listing all other lawsuits previously brought, except those under Texas
Family Code, and (b) certified copy of inmate's trust account).  It is from that dismissal
which Vacca now appeals.
          As a general rule, Texas appellate courts have jurisdiction only over final judgments. 
See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).   A judgment is final for
purposes of appellate jurisdiction if it disposes of all issues and parties in a case and no
further action is required to determine the controversy.  Mafrige v. Ross, 866 S.W.2d 590,
591–92 (Tex. 1993); Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692,
693 (Tex. 1986); North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.
1966).  A judgment that fails to dispose of all issues and all parties before the trial court is
neither final nor, with certain exceptions, appealable.  Park Place Hosp. v. Estate of Milo,
909 S.W.2d 508, 510 (Tex. 1995).
          In the case now on appeal, the trial court's judgment of dismissal states "that all
claims against Defendants Zelda Glass, Mendell Glass and Ronald Farrington are
DISMISSED as frivolous."  The trial court's judgment does not dispose of Vacca's claims
against Jonathan R. Rayburn, and it contains no "Mother Hubbard" clause.  Thus, it is not
a final, appealable judgment.  Cf. id. 
          None of the exceptions to the general requirement that a judgment be final before
it may be appealed apply to Vacca's appeal.  Accordingly, we dismiss Vacca's appeal for
want of jurisdiction.
 
                                                                           Donald R. Ross
                                                                           Justice


Date Submitted:      September 9, 2004
Date Decided:         September 10, 2004


OPINION ON REHEARING

          In his motion for rehearing, Angel M. Vacca directs our attention to the Texas
Supreme Court's recent opinion in M. O. Dental Lab v. Rape, 139 S.W.3d 671 (Tex. 2004). 
In that case, the trial court granted summary judgment to all but one of the defendants,
Charlie Smith, who had not been served.  Id. at 674.  The plaintiff, however, had stated in
her original petition "the location for service of Defendant Charlie Smith is unknown at this
time, so no citation is requested."  Id.  Based on this language, the Texas Supreme Court
agreed that the record supported the conclusion that the plaintiff had not intended to
pursue her claims against Smith.  Therefore, the court agreed with the parties that the trial
court's order granting summary judgment was final for purposes of appeal.  Id. at 674–75.
          In the case now before this Court, Vacca did not state in his original petition that
Jonathan R. Rayburn's whereabouts were unknown or that service was unnecessary.  Nor
does the official record from the trial court suggest Vacca does not, at some later point,
intend to pursue his claims against Rayburn.  Accordingly, we find the facts and posture
of this case to be distinguishable from the situation presented in M. O. Dental Lab. 
Accordingly, we hold the trial court's judgment is not final, and we are without jurisdiction
to consider the merits of Vacca's appeal.  
          We overrule the motion for rehearing.  
 
                                                                           Donald R. Ross
                                                                           Justice

Date:  October 7, 2004
