      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00437-CV



                                     Regina Long, Appellant

                                                 v.

                                     State of Texas, Appellee


              FROM THE COUNTY COURT AT LAW NO. 3 OF BELL COUNTY
              NO. 73644, HONORABLE REBECCA DEPEW, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant, Regina Long, requests permission to bring a permissive appeal of an

interlocutory order pursuant to section 51.014(d) of the civil practice and remedies code. See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014(d) (West Supp. 2011) (trial court may permit appeal from

otherwise unappealable order under certain prescribed circumstances); see also Tex. R. App. P.

28.3(a) (requiring party seeking to pursue permissive appeal of interlocutory order to petition court

of appeals for permission to appeal). We will deny the request.


                                         BACKGROUND

               After an April 27, 2012, bench trial, a Bell County justice of the peace rendered a

forfeiture order that transferred possession of 18 dogs owned by Long to the Animal Control Unit

of the Bell County Sheriff’s Office. Long states that she perfected an appeal to the county court at

law by filing a notice of appeal and posting a bond. According to Long, the clerk’s record was
received in the county clerk’s office on May 10, 2012. On June 7, Long filed a motion to dismiss

the case for “lack of prosecution.”1

               After a hearing, the trial court denied the motion to dismiss in an order dated

June 26, 2012. The order states:


       On the 14th day of June, 2012, the Court heard the Defendant’s Motion to Dismiss
       for Lack of Prosecution.

       After hearing argument of counsel and considering the evidence the Court finds that
       the Defendant’s Motion to Dismiss is DENIED.

       The Court further grants a three month continuance of the case and GRANTS
       PERMISSION for the Defendant to file an Interlocutory Appeal.


Long filed a notice of appeal on July 5 and five days later filed in this Court a document titled

“Petition for Review of Interlocutory Order.”


                                          DISCUSSION

               Civil practice and remedies code section 51.014(d) provides that:


       [A] trial court may, by written order, permit an appeal from an order that is not
       otherwise appealable if: (1) the order to be appealed involves a controlling question
       of law as to which there is a substantial ground for difference of opinion; and (2) an




       1
          An appeal from a justice court, unlike other appeals, is tried de novo in the county court
at law. Tex. R. Civ. P. 574b. When a justice court’s judgment is appealed, the parties must
proceed as though the judgment of the justice court had not been rendered. Villalon v. Bank One,
176 S.W.3d 66, 69-70 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). In such appeals, the
judgment of the justice court is vacated and the plaintiff has the burden of proving his case again.
Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286, 289 (Tex. App.—Houston [1st Dist.] 1992,
no writ).

                                                 2
        immediate appeal from the order may materially advance the ultimate termination of
        the litigation.


Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d). Rule 168 of the rules of civil procedure, which

implements section 51.014(d), provides:


        On a party’s motion or on its own initiative, a trial court may permit an appeal from
        an interlocutory order that is not otherwise appealable, as provided by statute.
        Permission must be stated in the order to be appealed. An order previously issued
        may be amended to include such permission. The permission must identify the
        controlling question of law as to which there is a substantial ground for difference
        of opinion, and must state why an immediate appeal may materially advance the
        ultimate termination of the litigation.


Tex. R. Civ. P. 168 (emphasis added).

                 In the present case, although the challenged order expressly grants permission to

appeal the order, it does not identify the controlling question of law at issue. While it might be

inferred from the reporter’s record that the trial court intended to grant permission for this Court to

determine whether the county court’s failure to dispose of the case within 10 days after receiving the

clerk’s record contravened health and safety code section 821.025(d) and thus required dismissal,

the order does not expressly so state.2 Rule 168 plainly requires the court, in the portion of the order




        2
            Health and safety code section 821.025(d) provides:

        Not later than the 10th calendar day after the date the county court or county court at
        law, as appropriate, receives a copy of the clerk’s record, the court shall consider the
        matter de novo and dispose of the appeal. A party to the appeal is entitled to a jury
        trial on request.

Tex. Health & Safety Code Ann. § 821.025(d) (West Supp. 2011).

                                                   3
that grants permission to appeal, to identify the controlling question of law at issue. Here, the order

simply recites that the motion to dismiss for lack of prosecution is denied and that permission to file

an interlocutory appeal is granted. The order does not provide any further information regarding the

basis for the motion to dismiss or the court’s reason for denying it. Moreover, in her request for

permission to appeal filed in this Court, Long argues that the trial court lacked jurisdiction over the

case. But the order she requests permission to appeal is one that denies, for unstated reasons, a

motion to dismiss for “lack of prosecution.”3


                                           CONCLUSION

                The trial court’s order granting permission to appeal does not comply with rule 168

of the Texas Rules of Civil Procedure. Moreover, there is an apparent discrepancy between the trial

court’s order denying a request to dismiss the case for “lack of prosecution” and the arguments

contained in Long’s petition regarding whether the trial court had lost jurisdiction. For these

reasons, we deny the petition seeking permission to appeal the interlocutory order. Because Long

also filed a notice of appeal in this cause, thereby invoking this Court’s jurisdiction, see Tex. R. App.

P. 25.1(b), we dismiss the appeal for lack of jurisdiction.




        3
           We also note that complaints that a trial court acted beyond its jurisdictional authority may
properly be brought through a petition for writ of mandamus. See In re Southwestern Bell Tel. Co.,
35 S.W.3d 602, 605 (Tex. 2000) (mandamus proper if trial court issues order beyond its
jurisdiction) (citing In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)); see also In re Strachan,
No. 05-12-00640-CV, 2012 WL 1833895, at *1 (Tex. App.—Dallas May 21, 2012, orig. proceeding)
(pursuant to health and safety code section 821.025(d) county court at law lost jurisdiction ten days
after it received clerk’s record in appeal from justice court’s forfeiture order).

                                                   4
                                           _____________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Dismissed for Want of Jurisdiction

Filed: July 25, 2012




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