                                      NUMBER
                                   13-10-00451-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

STEVE SCHWERIN,                                                             Appellant,

                                           v.

NUECES COUNTY JUVENILE BOARD,
NUECES COUNTY, TEXAS AND MICHAEL L.
LINDSAY D/B/A NESTOR CONSULTANTS, INC.,                                     Appellees.


                   On appeal from the 214th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
       Before Chief Justice Valdez and Justices Garza and Perkes
                Memorandum Opinion by Justice Garza

      Appellant, Steve Schwerin, appeals an order granting appellee Nueces County,

Texas’s plea to the jurisdiction. Specifically, appellant complains of: (1) the failure of

the Presiding Judge of the Fifth Administrative Region to properly respond to his motion
for disqualification; (2) inadequate notice of a hearing on a plea to the jurisdiction

decided in favor of appellee; and (3) the failure of the Presiding Judge of the Fifth

Administrative Region and the assigned trial judge to properly respond to his motions

for disqualification and recusal. Because we conclude that the appeal is untimely, we

do not reach these issues and dismiss this case for lack of jurisdiction.

                                            I.      BACKGROUND

        This appeal arises from a lawsuit that appellant filed against Nueces County, the

Nueces County Juvenile Board (collectively “Nueces County” or “the County”), and

Michael L. Lindsey d/b/a Nestor Consultants, Inc. (“Lindsey”) for claims related to

appellant’s termination as the Chief Juvenile Probation Officer of Nueces County in

2006.1 On August 25, 2009, as Presiding Judge of the Fifth Administrative Judicial

Region, Judge Manuel Bañales assigned Judge Jose Luis Garza to hear the case.

Nueces County filed a plea to the jurisdiction maintaining that it was immune from suit

against all of appellant’s claims. On May 26, 2010, the day before the hearing on the

County’s plea, appellant filed a “Motion to Disqualify and Declare all Orders in this

Matter by Judge J. Manuel Bañales Void.” In the motion, appellant requested that

Judge Bañales either disqualify himself or request that the Chief Justice of the Texas

Supreme Court assign another judge to the case. By written order signed on May 27,

2010, the trial court sustained the County’s plea and dismissed appellant’s claims

against the County.2


        1
          Appellant filed two lawsuits, which were later consolidated, based on the same allegations. A
suit against the Nueces County Juvenile Board is a suit against Nueces County. See Flores v. Cameron
County, 92 F.3d 258, 269 (5th Cir. 1996) (concluding that a county juvenile board is a county agency).
        2
         We note that the order states that “[t]his is a final order disposing of all claims against Defendant
Nueces County and the Nueces County Juvenile Board.” The order did not, however, sever, dismiss, or
otherwise dispose of appellant’s claims against Lindsey. A decree that fails, either expressly or by

                                                      2
        On June 25, 2010, appellant filed a “Motion for New Trial, Motion to Disqualify

and Declare All Orders in the Matter by Judge J. Manuel Bañales Void, Motion to

Recuse Judge J. Manuel Bañales and Jose Luis Garza, and Motion to Conduct

Evidentiary Hearing.” Also on June 25, 2010, appellant filed a “Motion to Sever” the

May 27, 2010 order from his claims against Lindsey, stating that he sought the

severance to permit an appeal of the May 27, 2010 order. The trial court did not rule on

either motion.3 On August 11, 2010, appellant filed his notice of appeal, which stated

that he was appealing the trial court’s May 27, 2010 order granting the County’s plea to

the jurisdiction.

        On September 27, 2010, the County filed a motion to dismiss, asserting that this

Court lacks jurisdiction to consider the appeal because it was not timely filed.                             On

December 3, 2010, appellant filed a response. In his response, appellant argued that

“[t]he order challenged in this interlocutory appeal may be void” and requested this

Court to “abate this appeal and order the trial court to determine [appellant’s] Motion to




necessary implication, to dispose of all affirmative claims of all parties against all parties is interlocutory in
nature. See Cantu Servs., Inc. v. United Freedom Assocs., Inc., 329 S.W.3d 58, 64 (Tex. App.—El Paso
2010, no pet.) (“After the trial court granted UFA’s plea to the jurisdiction, it did not sever, dismiss, or non-
suit any of Cantu’s claims against DARS. Thus, we must conclude that the trial court’s order granting
UFA’s plea to the jurisdiction did not dispose of all parties. Because the trial court’s order failed to
dispose of all parties and all causes of action, it is interlocutory.”). Here, the order granting the County’s
plea to the jurisdiction did not dispose of all parties and was therefore interlocutory. See id. Interlocutory
appeals of orders on pleas to the jurisdiction are permitted, see TEX. CIV. PRAC. & REM. CODE ANN.
51.014(a)(8) (West 2008), but must be appealed within twenty days of the trial court’s order. See TEX. R.
APP. P. 26.1(b). We note that appellant is free to obtain a severance order and appeal the judgment as a
final order. See Inliner Ams., Inc. v. Macomb Funding Group, LLC, 244 S.W.3d 427, 431 (Tex. App.—
Houston [14th Dist.] 2007, pet. dism’d) (“Finally, having failed to bring an agreed interlocutory appeal in a
timely fashion, the parties nevertheless are free to pursue a severance and appeal the judgment as a final
order.”).
        3
            The record does not show that appellant requested a hearing on his motion to sever or his
combined motion for new trial/motion to disqualify/motion to recuse, nor does the record show that the
trial court ever ruled on these motions.


                                                        3
Disqualify . . . .”4 On January 28, 2011, this Court denied the County’s motion to

dismiss.

        On February 24, 2011, the County filed a motion to reconsider the denial of its

motion to dismiss, reasserting its argument that this Court lacks jurisdiction because the

appeal was not timely filed.         On April 29, 2011, we denied the County’s motion to

reconsider. After reviewing the entire record before us, we now withdraw our January

28, 2011 and April 29, 2011 rulings on the County’s motions.

                                            II.      ANALYSIS

        Section 51.014(a)(8) of the civil practice and remedies code permits an

interlocutory appeal from an order that grants or denies a plea to the jurisdiction by a

governmental unit. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008).

Appeals from interlocutory orders, when allowed by statute, are accelerated appeals.

TEX. R. APP. P. 28.1. In order to perfect an accelerated appeal of an interlocutory order,

the party is required to file a notice of appeal “within 20 days after the judgment or order

is signed.” Id. at R. 26.1(b). The filing of a motion for new trial, request for findings of

fact and conclusions of law, or any other post-judgment motion, except for a motion for

extension of time filed under Texas Rule of Appellate Procedure 26.3, “will not extend

the time to perfect an accelerated appeal.” Id. at R. 26.3, 28.1(b).

        The trial court's order was signed on May 27, 2010. Under the civil practice and

remedies code, the order was subject to an accelerated interlocutory appeal. See TEX.

CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). Accordingly, appellant was required to file

his notice of accelerated appeal—which would include his complaint that the trial court’s

        4
            Appellant argued that the May 27, 2010 order is “void” because as a member of the Nueces
County Juvenile Board, Judge Banales was “constitutionally disqualified” and had “no authority” to assign
a trial judge to hear the case.

                                                   4
order is “void”—within twenty days of the trial court's May 27, 2010 order. The record

does not reflect that appellant filed a motion for extension of time under Texas Rule of

Appellate Procedure 26.3. See TEX. R. APP. P. 26.3; see also Houser v. McElveen, 243

S.W.3d 646, 646–47 (Tex. 2008) (stating that a notice of appeal should be considered

timely if filed within fifteen days after the filing deadline and accompanied by a motion

for extension of time with a reasonable explanation for the delay).            In addition,

appellant’s motion for new trial does not extend the time to file the notice of appeal in an

accelerated interlocutory appeal. See TEX. R. APP. P. 28.1(b); In re K.A.F., 160 S.W.3d

923, 927 (Tex. 2005) (“[I]n an accelerated appeal, absent a rule 26.3 motion, the

deadline for filing a notice of appeal is strictly set at twenty days after the judgment is

signed, with no exceptions, and filing a rule 26.1(a) motion for new trial, motion to

modify the judgment, motion to reinstate, or request for findings of fact and conclusions

of law will not extend that deadline.”).

          We are to construe the rules of appellate procedure reasonably and liberally so

that the right to appeal is not lost by imposing requirements not absolutely necessary to

effectuate the purpose of a rule. See In re R.D., 304 S.W.3d 368, 370 (Tex. 2010)

(quoting Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997)). Nevertheless, we

are prohibited from enlarging the scope of our jurisdiction by enlarging the time for

perfecting an appeal in a civil case in a manner not provided for by rule. See TEX. R.

APP. P. 2; In re T.W., 89 S.W.3d 641, 642 (Tex. App.—Amarillo 2002, no pet.) (op. on

reh’g).

                                       III.   CONCLUSION

          Because this appeal is untimely, we conclude that we lack jurisdiction. See In re



                                              5
K.A.F., 160 S.W.3d at 928. Accordingly, we withdraw our earlier denial of the County’s

September 27, 2010 motion to dismiss appellant’s appeal, we withdraw our earlier

denial of the County’s February 24, 2011, motion to reconsider the denial of the motion

to dismiss, GRANT the County’s motion to dismiss, and DISMISS the appeal for want of

jurisdiction. See TEX. R. APP. P. 42.3(a). All other pending motions are dismissed as

moot.




                                              DORI CONTRERAS GARZA
                                              Justice


Delivered and filed the
31st day of May, 2012.




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