                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-10-00182-CV

DANNY CLINE,
                                                                       Appellant
    v.

BRAD LIVINGSTON, ET AL,
                                                                       Appellees



                               From the 278th District Court
                                  Walker County, Texas
                                  Trial Court No. 24,935


                               MEMORANDUM OPINION


         Danny Cline has filed a motion to dismiss this appeal.1 Appellees have not filed

a response. Accordingly, the motion is granted, and the appeal is dismissed. See TEX. R.

APP. P. 42.1(a)(1).



                                                                 FELIPE REYNA
                                                                 Justice
1
        Because Cline put cause no. 10-10-00191-CV on this motion, which is the cause number for a
related mandamus proceeding, the motion was originally filed with the papers for that proceeding and
dismissed for want of jurisdiction. In a follow-up letter, however, Cline has clarified that the motion is
intended for this appeal.
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray dissenting with note)*
Appeal dismissed
Opinion delivered and filed December 15, 2010
[CV06]


*      (Chief Justice Gray dissents to granting Cline’s motion to dismiss. A separate
opinion will not issue. He notes, however, that Cline’s “motion” is phrased as follows:
“The Appellant hereby request the court dismiss the appeal for lack of jurisdiction or
otherwise make it’s ruling so appellant may proceed to refile his cause of action in a
different court in another district since he is receiving maltreatment in this one.” Chief
Justice Gray notes that quite possibly the reason we have not received a response from
the defendants/appellees is because Cline, an inmate representing himself, did not
serve his “motion” on the Attorney General who is the attorney of record for the
defendants/appellees (prison officials). Further, Chief Justice Gray believes we have
jurisdiction of this direct appeal and therefore it is erroneous to dismiss it for lack of
jurisdiction. The appeal has been fully briefed on its merits and Chief Justice Gray
would overrule Cline’s issues and affirm the trial court’s judgment for a number of the
reasons asserted in the appellees’ brief. Further, the defendants/appellees are entitled
to a disposition on the merits so that Cline cannot proceed against them over the
defense of res judicata. And finally, the Court’s judgment should assess cost of the
appeal, if it is going to dismiss it on Cline’s motion, against Cline and notify TDCJ of the
judgment that has been rendered against him for cost in this appeal. Chief Justice Gray
will forego comment upon Cline’s erroneous statements in the remainder of his motion
but notes that Cline’s statement in correspondence addressed to the deputy clerk is ill-
advised because the deputy clerk’s correspondence is communicating orders of this
Court.)




Cline v. Livingston                                                                   Page 2
