
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


M E M O R A N D U M   O P I N I O N

		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
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
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.

						_____________________________________________
						J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Dismissed for Want of Jurisdiction
Filed:   July 25, 2012
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.   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.   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).

