                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00340-CV


IN THE INTEREST OF M.G.T., A
CHILD




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          FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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      Appellant Allen Dale Newman, acting pro se, filed a timely notice of appeal

from the trial court’s June 28, 2010 “Final Order In Suit Affecting Parent-Child

Relationship.” The trial court subsequently granted a partial new trial on August

26, 2010, while it still had plenary jurisdiction over the case. See Tex. R. Civ. P.

329b(e). On October 6, 2010, we informed the parties that we were concerned

that we might not have jurisdiction over this appeal because a final judgment had


      1
       See Tex. R. App. P. 47.4.
not been entered in the case and that the appeal could be dismissed for want of

jurisdiction unless any party desiring to continue the appeal filed a response on

or before October 18, 2010, showing grounds for continuing the appeal.

       On October 18, 2010, Newman filed a response that did not show grounds

for continuing the appeal but instead sought this court’s instruction “on how to

remedy these matters,” i.e., the trial court’s order granting a partial new trial.

That same day the trial court set a hearing for October 28, 2010 on

“Respondent’s Motion to Reconsider Motion for New Trial, or, in the Alternative,

Motion to Set Aside Judgment and/or Dismiss.” On October 28, 2010, a “Final

Trial Notification” set the case for a final trial on December 6, 2010.

       On November 15, 2010, this court sent a letter to the parties informing

them that this court had determined that it had jurisdiction. No final trial was held

on December 6, 2010. Thereafter, on December 7, 2010, this court sent a letter

to the parties informing them that the November 15 letter was sent in error and

that the jurisdictional issue remained pending.

       On January 6, 2011, we received a letter from Newman stating that he was

filing the letter in lieu of a writ of mandamus and motion to stay proceedings in

trial court and that his letter required immediate attention. We have carefully

reviewed Newman’s letter and attached exhibits, which attempt to respond to our

December 7 letter even though no response was requested from the parties in

that letter.   Newman initially argues that because he was the only party to

respond to our initial jurisdiction letter, all other parties have waived their rights to

                                       2
question jurisdiction. Newman’s argument fails because parties cannot waive

jurisdiction.   See Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95

S.W.3d 511, 514 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (explaining that

appellate courts must determine question of jurisdiction, even sua sponte, and

that lack of jurisdiction may not be ignored simply because parties do not raise

it); see also New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679

(Tex. 1990) (holding that appellate court’s assumption of appellate jurisdiction

over interlocutory order when not expressly authorized to do so by statute is

jurisdictional fundamental error that supreme court will correct even though

neither party asserts it).

       Newman also argues that a partial trial would not be helpful and that an

entire new trial is needed. Newman’s letter raises other issues related to the

underlying divorce, none of which this court may address absent a final judgment

from the trial court. Newman’s letter does not address the central concern of this

court, which is that as of January 26, 2011, no other date has been set for a final

trial, nor has a final judgment been signed. Because there is no final judgment,

we dismiss the appeal for want of jurisdiction.2 See Tex. R. App. P. 42.3(a),

43.2(f).


                                                   PER CURIAM

       2
       Our disposition of this appeal does not bar Newman from bringing a future
appeal or from raising the issues he has posed in his letter, if he feels the need,
once a final judgment has been signed.


                                    3
PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: January 27, 2011




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