                                                                                  ACCEPTED
                                                                              04-15-00287-CV
                                                                  FOURTH COURT OF APPEALS
                                                                       SAN ANTONIO, TEXAS
                                                                         7/10/2015 2:28:48 PM
                                                                               KEITH HOTTLE
                                                                                       CLERK


                   No. 04-15-00287-CV
_______________________________________________________
                                                             FILED IN
                                                      4th COURT OF APPEALS
               IN THE COURT OF APPEALS                 SAN ANTONIO, TEXAS
     FOR THE FOURTH JUDICIAL DISTRICT OF             TEXAS
                                                      07/10/2015 2:28:48 PM
                    AT SAN ANTONIO                        KEITH E. HOTTLE
                                                               Clerk
________________________________________________________

           CECIL ADAMS and MAXINE ADAMS,
                     Appellants,

                             v.

 HARRIS COUNTY, REBECCA ROSS, KATHLEEN KEESE, and
         CHRISTOPHER A. PRINE, Clerk of the Court,
                        Appellees.
________________________________________________________
           On Appeal from the 269th District Court
                     Harris County, Texas
            District Court Cause No. 2014-35653


   APPELLEE HARRIS COUNTY’S MOTION TO DISMISS
    FOR LACK OF SUBJECT MATTER JURISDICTION
________________________________________________________
                           VINCE RYAN
                           Harris County Attorney

                           /s/ Keith A. Toler
                           KEITH A. TOLER
                           Assistant County Attorney
                           State Bar No. 24088541
                           1019 Congress, 15th Floor
                           Houston, Texas 77002
                           Phone: (713) 274-5265
                           Fax: (713) 755-8924
                           Email: Keith.Toler@cao.hctx.net

                           ATTORNEY FOR APPELLEE
                           HARRIS COUNTY
TO THE HONORABLE COURT OF APPEALS:

       Appellee Harris County files this Motion to Dismiss Appellants’ Appeal for

Lack of Subject Matter Jurisdiction, respectfully showing this Court the following:

                                     INTRODUCTION
       Appellants are Cecil and Maxine Adams. Appellees are Harris County,

Kathleen Keese, Rebecca Ross, and Christopher Prine.

       The 269th District Court of Harris County, Texas, signed the interlocutory

order denying Appellants’ motion to dismiss Harris County’s interpleader suit

(hereinafter the “Interlocutory Order”) in the underlying case, Harris County v.

Adams et al., cause number 2014-35653, on March 13, 2015.1

       Appellants appealed the Interlocutory Order, which is the subject of this

motion.2 Appellants incorrectly rely on Texas Rule of Appellate Procedure 29.6 for

the Court’s jurisdiction to hear a challenge to the Interlocutory Order.3 Neither

Rule 29.6 nor any other law authorizes interlocutory review of the Interlocutory

Order. Therefore, this Court lacks jurisdiction to hear the appeal of the

Interlocutory Order.

1
       (C.R. at 231).
2
        Appellants also appealed an order granting Appellee Prine’s plea to the jurisdiction. (C.R.
at 259). See generally Adams’ Appellate Brief. This motion does not argue that this Court lacks
jurisdiction to review the district court order granting Appellee Prine’s plea to the jurisdiction.
3
        See (C.R. at 259); Brief at 11 (praying “in the interest of justice, pursuant to TEX. R.
APP. P. 29.6 Adams pray that this Court will review pending motions for review of interlocutory
orders that impairs the effectiveness of the relief sought or that may be granted on appeal.”).
                                                2
                       ARGUMENTS AND AUTHORITIES
      The Court has the authority under Texas Rule of Appellate Procedure

42.3(a) to dismiss an appeal for lack of jurisdiction.

      The Court should dismiss this appeal because the Interlocutory Order is a

non-appealable interlocutory order.4 Generally, a party may only appeal a final

judgment.5 “A judgment is final for purposes of appeal ‘if and only if either it

actually disposes of all claims and parties then before the court, regardless of its

language, or it states with unmistakable clarity that it is a final judgment as to all

claims and all parties.’”6 The Interlocutory Order is not a final judgment because it

does not dispose of any claims or parties or state that it is a final judgment.7

      A party may appeal an interlocutory order when jurisdiction is authorized by

the Legislature.8 Here, the Interlocutory Order is only appealable if: (1) authorized

by Texas Rule of Appellate Procedure 29.6, which Appellants incorrectly rely

upon; (2) the specific interlocutory order is authorized by statute; or (3) a trial

court issues an order permitting an appeal of an otherwise non-appealable order, as

authorized by statute. None of these exceptions apply.
4
      City of Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex. 1993).
5
      Id.; De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006).
6
      Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012) (quoting
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192–93 (Tex. 2001)).
7
      (C.R. at 231).
8
      Bison Bldg. Materials, Ltd., 422 S.W.3d at 585 (citations omitted).
                                              3
1.    Rule 29.6 does not grant jurisdiction over this appeal.

      This interlocutory appeal does not fall within the scope of Texas Rule of

Appellate Procedure 29.6. Rule 29.6 states that:

      While an appeal from an interlocutory order is pending . . . the
      appellate court may review . . . (1) a further appealable interlocutory
      order concerning the same subject matter; and (2) any interlocutory
      order that interferes with or impairs the effectiveness of the relief
      sought or that may be granted on appeal.”9

By its plain language, Rule 29.6 does not apply when the pending order upon

which other interlocutory orders rely is a final judgment. Rather, the pending order

must be an appealable interlocutory order.

      The order Appellants rely upon is a final judgment, not an interlocutory

order. Appellants rely upon their pending appeal of the district court’s order

granting Appellee Prine’s plea to the jurisdiction.10 That order is a final judgment,

not an interlocutory order. The district court stated “with unmistakable clarity” that

the order “operates as a final judgment.”11 Moreover, the order disposes of all

parties and all cross-claims and counterclaims between Appellants and Appellee

Prine.12


9
      Tex. R. App. P. 29.6 (emphasis added).
10
        (C.R. at 259). Appellants incorrectly claim that the order granting a plea to the
jurisdiction is an interlocutory order.
11
      (C.R. at 229).
12
      Id.


                                               4
       Appellants cannot rely upon a pending appeal of a final judgment to grant

supplemental jurisdiction over the Interlocutory Order. The necessary prerequisite

of an appealable interlocutory order is absent in this appeal.13 Therefore, Rule 29.6

does not grant jurisdiction over the Interlocutory Order.

2.     No other law grants jurisdiction over this appeal.

       The Legislature has not excepted motions to dismiss interpleader actions

from the general rule that only final judgments are appealable. If no law authorizes

a particular interlocutory appeal, then an appellate court lacks jurisdiction to hear

the interlocutory appeal.14

       Section 51.014(a) of the Texas Civil Practice and Remedies Code expressly

authorizes appeals of certain enumerated interlocutory orders.15 Appellants’ motion

to dismiss is not included in the Section 51.014 list of appealable interlocutory

orders.16 Therefore, Appellants’ appeal is not authorized by Section 51.014(a).


13
        In addition, the Interlocutory Order does not concern the same subject matter as the plea
to the jurisdiction order or interfere with or impair the effectiveness of the relief sought or that
may be granted on appeal. Tex. R. App. P. 29.6.
14
       See De Ayala, 193 S.W.3d at 578, 579–80.
15
       Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (West 2013).
16
        Although Section 51.014 authorizes appeals of interlocutory orders denying certain
motions to dismiss, Appellants’ motion to dismiss an interpleader action is not included in the
enumerated list. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(11), (12) (West 2013)
(cross-referencing Tex. Civ. Prac. & Rem. Code Ann. §§ 90.007 (authorizing motions to dismiss
for failure to timely serve a report in an asbestos- or silica-related case) and 27.003 (authorizing
motions to dismiss actions based on a party’s exercise of rights of free speech, to petition, or of
association)).
                                                 5
       Section 51.014(d) also authorizes appeals of interlocutory orders when a

district court issues an order permitting an appeal of that court’s interlocutory

order.17 The Clerk’s Record reveals that the district court issued no such order.18

Therefore, Appellants’ appeal is not authorized by Section 51.014(d).

       Counsel for Harris County could not find any other law granting jurisdiction

to hear an interlocutory order denying a motion to dismiss an interpleader action.

Appellants have not directed the Court to any such law. Therefore, this Court lacks

jurisdiction to hear Appellants’ appeal of the Interlocutory Order.

                                       CONCLUSION
       This Court lacks jurisdiction to hear Appellants’ appeal of the district court

order denying Appellants’ motion to dismiss. Appellants incorrectly claim that

Texas Rule of Appellate Procedure 29.6 excepts the Interlocutory Order from the

general rule that a party may only appeal a final judgment. Moreover, there is no

other authority granting jurisdiction to hear the appeal of the Interlocutory Order.

Therefore, this Court lacks jurisdiction to hear Appellants’ interlocutory appeal of

the district court’s interlocutory order denying Appellants’ motion to dismiss

Harris County’s interpleader suit.


17
        Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West 2013) (authorizing, but not
requiring, a district court to, “by written order, permit an appeal from an order that is not
otherwise appealable” if certain conditions are met).
18
       See generally Clerk’s Record.
                                             6
                                     PRAYER
      For these reasons, Appellee Harris County asks the Court to grant this

motion and dismiss the appeal of the district court order denying Appellants’

motion to dismiss or, in the alternative, to affirm the district court’s judgment and

grant Appellee Harris County judgment for costs and all other relief to which

Appellee Harris County shows it is entitled.

                                       Respectfully submitted,

                                       VINCE RYAN
                                       Harris County Attorney

                                       /s/ Keith A. Toler
                                       KEITH A. TOLER
                                       Assistant County Attorney
                                       State Bar No. 24088541
                                       1019 Congress, 15th Floor
                                       Houston, Texas 77002
                                       Phone: (713) 274-5265
                                       Fax: (713) 755-8924
                                       Email: Keith.Toler@cao.hctx.net

                                       ATTORNEY FOR APPELLEE
                                       HARRIS COUNTY




                                         7
                    CERTIFICATE OF CONFERENCE

      I certify that I have attempted to confer with Cecil and Maxine Adams by

email and telephone voice message on July 8, 2015, but the Adams have not

responded to my attempts.

                                    /s/ Keith A. Toler
                                    KEITH A. TOLER
                                    Assistant County Attorney




                                      8
                             CERTIFICATE OF SERVICE

       I hereby certify that on this the 10th day of July, 2015, a true and correct

copy of the foregoing was served by electronic transmission and certified mail,

return receipt requested, to Appellants Cecil and Maxine Adams, and by electronic

transmission to counsel for the other parties.

Cecil & Maxine Adams                                Jayson Booth
5510 Rice, #1206                                    Booth Richey, LLP
Houston, Texas 77081                                3730 Kirby Dr., Ste. 777
cecillovesmax@sbcglobal.net                         Houston, Texas 77098
Pro Se, Appellants                                  jbooth@boothricheylaw.com
Sent via certified mail and email                   Attorney for Kathleen Keese, Appellee
                                                    Sent via electronic transmission


Christin Cobe Vasquez                               Timothy J. Henderson
Office of Texas Attorney General                    Attorney at Law
P.O. Box 12548                                      6300 West Loop South, Ste. 280
Austin, Texas 78711-2548                            Houston, Texas 77401
christin.vasquez@texasattorneygeneral.gov           timjhenderson@msn.com
Attorney for Christopher A. Prine, Appellee         Attorney for Rebecca Ross, Appellee
Sent via electronic transmission                    Sent via electronic transmission




                                              /s/ Keith A. Toler
                                              KEITH A. TOLER
                                              Assistant County Attorney




                                                9
