                              NO. 07-02-0195-CV

                         IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                                AT AMARILLO

                                  PANEL E

                              OCTOBER 17, 2002

                      ______________________________


               JIMMY SWINNEY, DONLEY COUNTY CONSTABLE,
                      PRECINCT 1 AND 2, APPELLANT

                                      V.

        JACK HALL, INDIVIDUALLY AND AS DONLEY COUNTY JUDGE,
     DON HALL, INDIVIDUALLY AND AS DONLEY COUNTY COMMISSIONER,
        ERNEST JOHNSTON, INDIVIDUALLY AND AS DONLEY COUNTY
      COMMISSIONER, HENRY “BUSTER” SHIELDS, INDIVIDUALLY AND AS
        DONLEY COUNTY COMMISSIONER, BOB TROUT, INDIVIDUALLY
      AND AS DONLEY COUNTY COMMISSIONER, AND DONLEY COUNTY,
                           TEXAS, APPELLEES


                    _________________________________

           FROM THE 100TH DISTRICT COURT OF DONLEY COUNTY;

               NO. 5890; HONORABLE DAVID M. MCCOY, JUDGE

                     _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ.1




      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2002).
       Jimmy Swinney (Swinney) brings this appeal from a summary judgment dismissing

his claims against appellees Jack Hall, the County Judge of Donley County, each member

of the Donley County Commissioner’s Court in their individual and official capacities, and

Donley County. In his suit, Swinney sought declaratory relief, mandamus and damages

arising from his service as constable in Donley County Precincts 1 and 2. For reasons

hereinafter stated, we dismiss the appeal for want of jurisdiction.


       In 1999, Swinney was elected by a write-in vote to the long vacant office of

Constable for Donley County Precincts 1 and 2. His term of office began on January 1,

2001. Based upon research done by them, the Commissioner’s Court set a budget of

approximately $5,000 for the operation of Swinney’s office. Being dissatisfied with the

amount allocated, on June 19, 2001, Swinney filed the suit giving rise to this appeal. In

the suit, he sought declarations that, inter alia, the salary set for the position was not

reasonable as a matter of law, the Commissioner’s Court had a ministerial duty to set a

reasonable salary, they had failed to do so, and under section 87.011(2)(B) of the Local

Government Code, the court was guilty of gross carelessness in the discharge of their

duties, and the defendants were jointly and severally liable for his attorney’s fees. He also

sought a writ of mandamus directing the Commissioner’s Court to set a reasonable salary

for his position, and asked for back pay based on that reasonable salary.


       In their June 29, 2001 answers, appellees asserted general denials and raised

affirmative defenses of official and sovereign immunity. On that same day, County Judge



                                             2
Jack Hall and Commissioners Don Hall and Bob Trout filed a joint motion seeking

summary judgment, as did Commissioners Buster Shields and Ernest Johnston. Although

separate, both motions alleged grounds that were basically the same. However, in their

motion, Shields and Johnston additionally argued they were not proper parties because

they had not been members of the Commissioner’s Court when the budget was set.

Swinney also filed a motion seeking a partial summary judgment on the commissioners’

duty to set a reasonable salary for his office.


       Because of his failure to obtain the required Texas Peace Officer license within 270

days of taking office, Swinney resigned as constable on September 29, 2001. See Texas

Local Gov’t Code Ann. § 86.0021(b) (Vernon 1999). On January 31, 2002, the trial court

denied Swinney’s motion seeking partial summary judgment and granted the motions for

summary judgment of “Jack Hall, individually and as Donley County Judge, Don Hall

individually and as Donley County Commissioner, Bob Trout, individually and as Donley

County Commissioner, Henry “Buster” Shields, individually and as Donley County

Commissioner, Ernest Johnston [sic], individually and as Donley County Commissioner,

and Donley County, Texas.”


       Initially, we note that even if the question is not raised by the parties, this court is

obligated sua sponte to determine its jurisdiction to hear this appeal. Welch v. McDougal,

876 S.W.2d 218, 220 (Tex.App.--Amarillo 1994, writ denied). It is axiomatic that in order

to be final and appealable, a judgment must dispose of all issues and parties in the case.



                                              3
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). Before we can discuss the issues

raised by the parties, we must first determine whether the trial court’s order, which purports

to grant summary judgment for all defendants, is a final judgment for purposes of appeal,

even though Donley County, one of the parties for whom judgment is rendered, did not file

a motion seeking the judgment.


       In a supplemental brief and at oral argument, appellees argued the judgment was

final and appealable because 1) the court’s order expressly names each defendant, 2) by

bringing this appeal, appellant has waived any challenge to the finality of the order, and

3) the parties have treated the order as a final judgment.


       In Lehmann, the court reviewed the requirements for a judgment to be final and

appealable. In doing so, it recognized and reiterated the rule that no presumption of

finality may be indulged in favor of judgments not tried on the merits. 39 S.W.3d at 200,

204. In the course of its discussion, the Lehmann court expressly considered instances

in which a trial court gave more relief than requested and held that such error “makes the

order reversible, but not interlocutory.” Id. at 204. Under that teaching, even though it was

granted without being requested, if it met other necessary requirements to be final, it could

be reviewed on appeal.


       While it is true that a final summary judgment may undergo immediate appellate

review, to be considered final, it must satisfy certain criteria. Of those criteria, the most




                                              4
important is the need for the rendition of an actual judgment. The decretal portion of the

judgment reads as follows:


       Therefore, it is ORDERED, ADJUDGED AND DECREED that the Motion for
       Summary Judgment of Defendants, Jack Hall, Individually and as Donley
       County Judge, Don Hall, Individually and as Donley County Commissioner,
       Henry “Buster” Shields, Individually and as Donley County Commissioner,
       Ernest Johnston, Individually and as Donley County Commissioner, and
       Donley County, Texas, be and is hereby GRANTED.

       Costs. All costs of court in this cause, all attorney’s fees and all other costs
       are adjudged against the party by whom incurred.


       In Chandler v. Reder, 635 S.W.2d 895 (Tex.App.--Amarillo 1982, no writ), and Disco

Machine of Liberal Co. v. Payton, 900 S.W.2d 71 (Tex.App.--Amarillo 1995, writ denied),

we had occasion to consider summary judgments with similar decretal provisions. In

Disco, we noted that such declarations2 “are nothing more than an indication of the trial

court’s decision vis-a-vis the motions for summary judgment. It does not express a specific

settlement of rights between the parties. It does not disclose the specific and final result

officially condoned by and recognized under the law.” Id. at 74. As we did in the

preceding two cases, we can only hold that in the absence of the rendition of a cognizable

final judgment, this court has no jurisdiction over the appeal.


       Accordingly, the appeal must be, and is hereby, dismissed.




      2
        That is, the mere declaration that a summary judgment is rendered without more
specificity as to the disposition of the contentions of the parties.

                                              5
                      John T. Boyd
                      Senior Justice

Do not publish.




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