                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                  §
 TAVARE CASTILLO,
                                                  §                No. 08-10-00281-CV
                              Appellant,
                                                  §                  Appeal from the
 v.
                                                  §            112th Judicial District Court
 MS. AGUILAR, LINDA D. CARRANZA,
 FT. STOCKTON UNIT AND TEXAS                      §               of Pecos County, Texas
 DEPARTMENT OF CRIMINAL
 JUSTICE, IN THEIR INDIVIDUAL                     §               (TC# P-11174-112-CV)
 AND/OR OFFICIAL CAPACITIES,

                              Appellees.



                                           OPINION

       Tavare Castillo attempts to appeal from an order of dismissal. Because the order is not a

final judgment, we dismiss the appeal for lack of jurisdiction.

                                     Procedural Background

       Castillo was incarcerated by the Texas Department of Criminal Justice (TDCJ) when he

filed this suit. His original petition alleges that he was found guilty of a disciplinary infraction.

As part of his punishment, he was denied access to some of his personal property for ten days.

During that ten-day period, he was transferred to another prison. Although he had been advised

by the property officer supervisor that his property would follow him to the other prison when the

ten-day period expired, the property was never returned to him. Castillo filed a grievance

regarding the missing property, and prison officials concluded that it had been lost or destroyed.

Castillo was offered a cash settlement of $25, but he refused, claiming that the property included
family pictures, legal materials, and songs he had written, which valued in the thousands of dollars.

       On Castillo’s original petition, the style of the case appears as follows: “TAVARE

CASTILLO Plaintiff, v. AGUILAR, MS.; CARRANZA, LINDA, D.; FT. STOCKTON UNIT

AND TEXAS DEPARTMENT OF CRIMINAL JUSTICE, In Thier [sic] Individual And/or

Official Capacity Defendant(s).” Under the heading “PARTIES,” Castillo listed himself first.

Then, in three separate paragraphs, he listed: “Ms. ________ Aguilar,” followed by her title and

address; “Ms Linda Carranza,” followed by her title and address; and “The Ft. Stockton Unit and

TDCJ,” which, the petition said, “may be contacted at the same addresses expressed . . . above.”

       The district clerk issued three citations for service of process. One was directed to:

       MS. AGUILAR
       FORT STOCKTON UNIT
       PROPERTY OFFICER SUPERVISOR.

Another was directed to:

       MS. LINDA CARRANZA
       FORT STOCKTON UNIT
       WARDEN.

Both of these citations are accompanied by returns, signed by a deputy, showing that process was

served on the individuals. The remaining citation was directed to:

       FORT STOCKTON UNIT and TDCJ
       MS. LINDA CARRANZA, WARDEN

This citation is accompanied by a return showing that process was delivered to Warden Linda

Carranza, but the return is not signed or verified.

       Aguilar and Carranza filed a joint answer. Thereafter, on June 7, 2010, Castillo filed a

motion for entry of default against “Defendant(s) Fort Stockton and TDCJ.” He asserted that this


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“Defendant(s)” had been served, but had failed to answer.

       On June 10, 2010, Aguilar and Carranza filed a joint motion to dismiss pursuant to Chapter

14 of the Texas Civil Practice and Remedies Code. Among other things, they argued that Castillo

had not sued the correct defendant because he only sued “Defendants in their individual and

official capacities and failed to sue TDCJ.”

       On June 11, 2010, the trial court signed an order denying the motion for default judgment.

The order states that the motion was without merit because “all defendants have filed answers.”

       On June 22, 2010, the trial court signed an order on the motion to dismiss. This order

states that the court “considered Defendants’ Lyn Aguilar and Linda Carranza [sic] Chapter

Fourteen of the Texas Civil Practice and Remedies Code Motion to Dismiss,” and was “of the

opinion that the following order should issue:”

               It is hereby ORDERED that Defendants’ Motion to Dismiss is GRANTED.
       Plaintiff’s causes of action is [sic] hereby DISMISSED WITH PREJUDICE as to
       all claims for failure to comply with Chapter 14 of the Texas Civil Practices and
       Remedies Code.

               All other relief not hereby granted is otherwise DENIED.

       Castillo filed a motion for new trial, contending that he did not receive notice of the motion

to dismiss. In support of this contention, he submitted a letter addressed to him from a legal

assistant at the Attorney General’s office, dated June 22, 2010--the date the dismissal order was

signed. The letter states that a copy of the motion to dismiss was enclosed and that the copy was

originally mailed to him on June 8, but the mail was returned because it contained the wrong TDCJ

number for Castillo. The legal assistant apologized “for any inconvenience this may have

caused.”


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       The motion for new trial also complained about the denial of the motion for default

judgment. Castillo pointed out that his petition listed the Fort Stockton Unit/TDCJ as a

defendant, yet this defendant had not answered. The trial court did not enter a written ruling on

the motion for new trial.

                                             Discussion

       On appeal, Castillo contends that the trial court abused its discretion and denied him due

process by allowing the motion for new trial to be overruled by operation of law and by failing to

have a hearing on the motion. Aguilar and Carranza argue that the court did not err.

       Although not raised by any party, we have an obligation to ensure that we have jurisdiction

before proceeding to the merits of the appeal. See In re Estate of Morales, 345 S.W.3d 781, 783

(Tex.App.--El Paso 2011, no pet.). As a general rule, an appeal may be taken only from a final

judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is

final if it disposes of all pending parties and claims. Id. Consequently, an order that dismisses

some, but not all, defendants under Chapter 14 of the Civil Practice and Remedies Code is

interlocutory and cannot be appealed until a final judgment is entered. See Hickman-Bey v. Tex.

Dep’t of Criminal Justice-CID, No. 07-09-0068-CV, 2009 WL 2176476, at *2

(Tex.App.--Amarillo July 22, 2009, no pet.)(mem. op.).

       Whether an order amounts to a final judgment “must be determined from its language and

the record in the case.” Lehmann, 39 S.W.3d at 195. “[W]hen there has not been a conventional

trial on the merits, an order or judgment is not final for purposes of appeal unless it actually

disposes of every pending claim and party or unless it clearly and unequivocally states that it

finally disposes of all claims and all parties.” Id. at 205. The language of an order can make it

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final, even if the record does not provide an adequate basis for rendition of a final judgment, if the

intent to make a final disposition is unequivocally expressed in the words of the order. Id. at 200.

          “[A] judgment may be final, even though it does not dispose of all parties named in the

petition, if the remaining party was never served with citation and did not file an answer, and

nothing in the record indicates that the plaintiff ever expected to obtain service upon the remaining

party.” Garcia v. State Farm Lloyds, 287 S.W.3d 809, 812 (Tex.App.--Corpus Christi 2009, pet.

denied). citing Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962); see also

M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674-75 (Tex. 2004)(applying this rule to find a

judgment final where plaintiff’s petition stated that the unserved defendant’s address was

unknown and no citation was requested). Unless the record suggests that the plaintiff has no

intention of pursuing the claims against the unserved defendant, that defendant remains a party to

the case for purposes of determining the finality of an order. See Vacca v. Glass, 148 S.W.3d 207,

208 (Tex.App.--Texarkana 2004, pet. denied)(op. on reh’g).

          There are three defendants in this case. The style on the original petition is not a model of

clarity, but the use of semicolons to separate Aguilar and Carranza from each other and from “Ft.

Stockton Unit and Texas Department of Criminal Justice” suggests that there are at least three

defendants. The body of the petition removes any doubt by listing the three defendants

separately.1 The district clerk understood that there are three defendants, and thus issued three

citations.

          The record does not conclusively establish that TDCJ was served with process, but it

makes very clear that Castillo intended to serve TDCJ--and actually believed he had done so. He


1
    We consider the Fort Stockton Unit and TDCJ to be one defendant.
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even filed a motion for default judgment against TDCJ. Because there is nothing to suggest that

Castillo did not intend to pursue his claims against TDCJ, it is a party to the case for purposes of

finality.

        Although there are three defendants, only two of them moved for dismissal. By granting

the motion to dismiss, the trial court only disposed of the claims against the two moving

defendants. The June 22 order also states, “Plaintiff’s causes of action is [sic] hereby

DISMISSED WITH PREJUDICE as to all claims for failure to comply with Chapter 14 of the

Texas Civil Practices and Remedies Code.” Because the record demonstrates that neither the trial

court nor Aguilar and Carranza realized that TDCJ is a party, this language does not unequivocally

indicate an intent to dispose of Castillo’s claims against TDCJ. Finally, the order states, “All

other relief not hereby granted is otherwise DENIED.” This language no longer denotes a final

judgment. See Lehmann, 39 S.W.3d at 203-04.

        This case is similar to Fuller v. Moya, No. 10-09-00294-CV, 2009 WL 4852425

(Tex.App.--Waco Dec. 16, 2009, no pet.)(mem. op.). In that case, the plaintiff sued TDCJ and

several of its employees. See 2009 WL 4852425, at *1. Two of the employees filed a motion to

dismiss. The trial court granted the motion “and dismissed [Plaintiff’s] ‘cause of action’ as

frivolous ‘with prejudice as to all claims.’” Id. (quoting the trial court’s order). After this order

was entered, other defendants were served and the plaintiff continued to litigate his claims against

them. Fuller, 2009 WL 4852425, at *1 Despite the seemingly conclusive language in the order,

the appellate court held that it was not a final judgment. See id.

                                            Conclusion

        The June 22, 2010 order is not a final judgment. Accordingly, this appeal is dismissed for

                                                 6
lack of jurisdiction.



February 29, 2012
                                             CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.




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