

 
           
This opinion/order has been withdrawn per order of the Tenth Court of Appeals.


td>
 


 

No. 10-09-00294-CV
 
James C. Fuller,
                                                                                    Appellant
 v.
 
BENITO Moya, et al,
                                                                                    Appellees
 
 
 

From the County Court
at Law
Walker County, Texas
Trial Court No. 9678CV
 

ORDER

 



            Appellant James C. Fuller filed
suit against the Texas Department of Criminal Justice and TDCJ employees Benito
Moya, Tommy Goodin, Freddie English, Floyd Hicks, an unnamed property officer
for the Wynne Unit, and “Major Butcher.”  The trial court granted English’s and
Hick’s motion to dismiss and dismissed Fuller’s 
“cause of action” as frivolous “with prejudice as to all claims.”  However, not
all the named defendants had been served when the dismissal order was signed,[1]
two of the defendants appeared and filed answers after the dismissal order was
signed, and only English and Hicks sought a dismissal.  Therefore, it is not
clear from the record whether the dismissal order is a final, appealable
judgment.  See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) (a final, appealable judgment is one which actually disposes of all parties and
claims or “clearly and unequivocally states that it finally disposes of all
claims and all parties”).  
            If the order is not
appealable, then Fuller’s appeal is subject to dismissal for want of
jurisdiction.  Accordingly, the Court requests briefing from Fuller and from
the appellees on the issue of whether the June 10, 2009 order is appealable. 
If a brief or other response showing grounds for continuing this appeal is not
received within twenty-one days after the date of this Order, then the appeal
may be dismissed for want of jurisdiction.  See Tex. R. App. P. 42.3(a).
PER CURIAM
Before Chief
Justice Gray,
Justice
Reyna, and
Justice
Davis
Order issued
and filed November 10, 2009
Do not publish




[1]
              The citation for TDCJ
was returned unserved due to an incorrect address.  The unnamed property
officer and Major Butcher have apparently never been served.


