       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING



                                      NO. 03-18-00159-CV


                                 Trent Alvon Smith, Appellant

                                                v.

            Gary Wright, Virginia Schafer, Jennifer Hamilton, Pam Pace, and
         Texas Department of Criminal Justice Health Services Division, Appellees


               FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
   NO. D-1-GN-17-001759, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               We withdraw our opinion and judgment dated April 10, 2018, and we substitute

the following opinion and judgment in their place. We deny the motion for rehearing.

               On April 10, 2018, this Court dismissed appellant Trent Alvon Smith’s appeal for

want of jurisdiction because we concluded that his notice of appeal had been untimely filed. See

Smith v. Wright, No. 03-18-00159-CV, 2018 WL 1734610 (Tex. App.—Austin Apr. 10, 2018, no

pet. h.) (mem. op.). In that opinion, we explained that although Smith had timely filed a request

for findings of fact and conclusions of law after the trial court signed the judgment he sought to

appeal, his notice of appeal had been filed long after the extended deadline. See id.
               At the time the Court issued its opinion, Smith had not responded to the letter

from the Clerk of this Court informing him that the Court appeared to lack jurisdiction over the

appeal because his notice of appeal appeared untimely. After we issued our opinion, however,

Smith filed a motion for rehearing. In the motion, he explained that after he filed his request for

findings of fact and conclusions of law, the trial court informed him by October 23, 2017 letter

that his request was not ripe because there had been no final judgment because the two

September 21, 2017 orders dismissing some of the defendants did not dispose of one remaining

defendant. In January 2017, Smith attempted to file an amended petition in the case, but the

trial-court clerk’s office informed him by letter that the clerk’s office could not process his

enclosed filing because his case was closed on September 21.

               Our examination of the record confirms that the trial court correctly informed

Smith that the remaining defendant, David Langston, DDS has not been served, has not

appeared, has not moved for dismissal, and was not dismissed in the trial court’s orders of

dismissal. In addition, we note that there is language in the two orders stating that the order “will

operate as a FINAL JUDGMENT against this defendant,” which has been crossed out. It further

appears that the trial-court clerk’s office does not have the remaining defendant Langston listed

as a party in its listing of parties. There is nothing in the clerk’s record or on the trial court’s

docket subsequent to the trial court’s correspondence with Smith indicating that Langston was

ever dismissed from the case or that any final judgment was signed.

               We have no jurisdiction to hear an appeal from a judgment that is not final, unless

there is specific statutory authority permitting an appeal before final judgment. See Tex. Civ.




                                                 2
Prac. & Rem. Code § 51.012, .014(a).         Accordingly, we dismiss the appeal for want of

jurisdiction. See Tex. R. App. P. 42.3(a).



                                             __________________________________________
                                             Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Field

Dismissed for Want of Jurisdiction on Motion for Rehearing

Filed: June 29, 2018




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