                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-12-00544-CV


                         TRACEY H. COOMER, APPELLANT

                                           V.

                          TAMALA K. ALVAREZ, APPELLEE

                             On Appeal from the County Court
                                   Hartley County, Texas
                 Trial Court No. 600, Honorable Ronnie Gordon, Presiding

                                   March 28, 2014

                           MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant, inmate Tracey H. Coomer, proceeding pro se, appeals the trial court’s

judgment dismissing his claims against Texas Department of Criminal Justice official,

Tamala K. Alvarez. In three points of error, he complains on appeal that the trial court

erred by dismissing his claims under the provisions of Chapter 14 of the Texas Civil

Practice and Remedies Code. We will vacate the trial court’s order and dismiss the

appeal.
                             Factual and Procedural History


      Feeling dissatisfied with the relief offered by the TDCJ grievance process in

response to his complaints regarding the alleged confiscation of his typewriter and

various personal property, Coomer first brought suit against Alvarez in the Justice of the

Peace Court of Hartley County in November 2010.            The justice court dismissed

Coomer’s claims against Alvarez by order signed March 5, 2011. The justice court

disposed of Coomer’s claims as follows: “Plaintiff is not in compliance with Chapter 14

of the Texas Civil Practice & Remedies Code, and the Court is of the opinion that his

claims are FRIVOLOUS. As such, Plaintiff’s entire petition is hereby finally DISMISSED

WITH PREJUDICE.”


      On October 26, 2011, Coomer filed a document he identified as his “Notice of

Appeal to the 69th Judicial District Court from an Order of a Justice of the Peace Court.”

The notice provided as follows:


             Notice is hereby given that Tracey H. Coomer, Texas Department
      of Criminal Justice (TDCJ)-ID# 1473063, (Plaintiff), in the above named
      case, hereby appeal[s] to the 69th Judicial District Court, from an Order of
      Dismissal with Prejudice entered in this action on the 5th day of March,
      2011, but not received until the 13th day of September, 2011.
            This Notice is to preserve any appeal as of right from the
      appealable Order received from the Justice of the Peace Court of Hartley
      County, Texas, where the Honorable Edwyna Womble presides.


Coomer then filed his “Application to Proceed in Forma Pauperis” with the district clerk

on October 28, 2011.




                                            2
        On December 14, 2012,1 after considering Alvarez’s motion to dismiss, the

district court disposed of Coomer’s claims as follows:


        It is therefore,


        ORDERED that Defendant Alvarez’s Motion to Dismiss [u]nder Chapter 14
        of the Texas Civil Practice & Remedies Code is GRANTED, and all of
        Plaintiff’s claims against Defendant Tamala K. Alvarez are DISMISSED
        WITH PREJUDICE. It is further,


        ORDERED that all of Plaintiff’s claims in this lawsuit against the remaining
        Defendants are DISMISSED WITHOUT PREJUDICE due to Plaintiff’s
        failure to have them served. It is further,


        ORDERED that all relief not expressly granted is DENIED. This is a final
        judgment that is intended to dispose of all claims against all parties and is
        appealable.




Coomer filed his notice of appeal to this Court on December 27, 2012.


                                            Applicable Law


Standard of Review


        Whether a trial court has subject matter jurisdiction to decide a case is a question

of law. Litoff v. Meadows Serv. Corp., 352 S.W.3d 894, 896 (Tex. App.—Dallas 2011,

no pet.) (citing, inter alia, Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,



        1
            We note the clerical error evident in the district court’s judgment that indicates judgment was
signed on December 14, 2013. We note that the remainder of the clerk’s record, including the district
clerk’s file stamp showing that the judgment was filed at 3:06 pm on December 14, 2012, supports the
conclusion that the judgment was, indeed, signed in 2012 rather than 2013. We will treat the relevant
date as December 14, 2012, throughout this opinion.

                                                    3
226 (Tex. 2004)). We review this question of law de novo. See Stockton v. Offenbach,

336 S.W.3d 610, 615 (Tex. 2011).


Perfecting an Appeal from a Justice Court’s Order


      To perfect an appeal from a justice court to a county court, the appealing party

must file either an appeal bond or an affidavit of inability to pay in lieu of the appeal

bond. See TEX. R. CIV. P. 571–73; Rowe v. Watkins, 340 S.W.3d 860, 862–63 (Tex.

App.—El Paso 2011, no pet.). More specifically, the rules provide as follows:


      The party appealing . . . shall within ten days from the date a judgment or
      order overruling motion for new trial is signed, file with the justice a bond,
      with two or more good and sufficient sureties, to be approved by the
      justice, in double the amount of the judgment, payable to the appellee,
      conditioned that appellant shall prosecute his appeal to effect, and shall
      pay off and satisfy the judgment which may be rendered against him on
      appeal . . . .




TEX. R. CIV. P. 571 (West Supp. 2013, repealed 2013). The rules provide an alternative

manner of perfecting appeal:


      Where appellant is unable to pay the costs of appeal, or give security
      therefor, he shall nevertheless be entitled to appeal by making strict proof
      of such inability within five days after the judgment or order overruling
      motion for new trial is signed, which shall consist of his affidavit filed with
      the justice of the peace stating his inability to pay such costs, or any part
      thereof, or to give security . . . .




TEX. R. CIV. P. 572. (West Supp. 2013, repealed 2013).


      Only “[w]hen the bond, or the affidavit in lieu thereof, provided for in the rules

applicable to justice courts, has been filed and the previous requirements have been

                                            4
complied with” is the appeal held to be perfected. TEX. R. CIV. P. 573 (West Supp.

2013, repealed 2013). Compliance with the above requirements is jurisdictional, and,

as the language in Rule 573 indicates, only compliance therewith will operate to perfect

the appeal. Almahrabi v. Booe, 868 S.W.2d 8, 10 (Tex. App.—El Paso 1993, no writ).


Trial Court’s Jurisdiction


       Again, Rules 571 through 573 are treated as jurisdictional prerequisites. See id.;

see also Miller v. Henderson, No. 06-12-00093-CV, 2013 Tex. App. LEXIS 1610, at *4

(Tex. App.—Texarkana Feb. 21, 2013, pet. denied) (mem. op.). So, if the appeal bond

or affidavit in lieu of the bond is not timely filed, “the county court is without jurisdiction

to hear the appeal, and the appeal must be dismissed for lack of jurisdiction.” Williams

v. Schneiber, 148 S.W.3d 581, 583 (Tex. App.—Fort Worth 2004, no pet.). Lack of

subject matter jurisdiction renders a judgment void, rather than merely voidable. Miller

v. Woods, 872 S.W.2d 343, 346 (Tex. App.—Beaumont 1994, orig. proceeding);

Winfield v. Pietsch, No. 07-09-00261-CV, 2009 Tex. App. LEXIS 8027, at *6 (Tex.

App.—Amarillo Oct. 2, 2009, order) (per curiam).


This Court’s Jurisdiction


       An appellate court has no jurisdiction to consider the merits of an appeal from a

void judgment. Mellon Serv. Co. v. Touche Ross & Co., 946 S.W.2d 862, 864 (Tex.

App.—Houston [14th Dist.] 1997, no writ). Where the trial court did not have jurisdiction

to render a judgment, the proper practice is for the reviewing court to set the judgment

aside and dismiss the cause. Crane v. Richardson Bike Mart, Inc., 295 S.W.3d 1, 5

(Tex. App.—El Paso 2009, no pet.); see In re T.D.S.T., 287 S.W.3d 268, 272 n.8 (Tex.


                                              5
App.—Amarillo 2009, pet. denied); Mellon Serv. Co., 946 S.W.2d at 864; see also

Miller, 2013 Tex. App. LEXIS 1610, at *8–9 (“Insofar as the County Court at Law was

without jurisdiction to entertain [Appellant]’s appeal, this Court is likewise without

jurisdiction.”).2


                                                   Analysis


        From the record before us, it appears that Coomer filed his “Application to

Proceed in Forma Pauperis” with the district clerk on October 28, 2011.                             Liberally

construing his application, treating it for the purposes of this discussion as his affidavit in

lieu of an appeal bond in an attempt to comply with Rule 572, and overlooking the

apparent technical error in filing it in the wrong location, we see Coomer’s affidavit is far

from being timely filed; Rule 572 requires that the affidavit in lieu of appeal bond be filed

within five days of the date that judgment was signed, here, March 5, 2011. Coomer,

then, filed his affidavit in lieu of bond 237 days after the judgment was signed in the

justice court.


        Coomer represents in his notice of appeal, filed in the justice court two days

before his ostensible affidavit in lieu of bond, that he only received notice of the justice

court’s March 5th judgment on September 13, 2011. Even taking his representation as

true and treating September 13 as the date from which we calculate the applicable

        2
            The Fort Worth Court explained the analytical steps it followed in employing this disposition:

        [T]he county court at law had no jurisdiction to entertain [Appellant]’s appeal of the
        petition for review proceeding. Because the county court at law had no jurisdiction over
        the petition for review proceeding, it had no jurisdiction to enter the . . . order from which
        this appeal has been taken. Therefore, we only have jurisdiction to vacate the [county
        court’s] order and dismiss this appeal.

Smith v. Belton, No. 02-08-00258-CV, 2009 Tex. App. LEXIS 9090, at *5 (Tex. App.—Fort Worth Nov. 25,
2009, pet. denied) (mem. op.) (per curiam).

                                                       6
deadlines, the date on which Coomer filed his “Application to Proceed in Forma

Pauperis” was still significantly late, filed forty-five days after the date he maintains he

received notice of the judgment. Even liberally construing Coomer’s “Application to

Proceed in Forma Pauperis” as his affidavit in lieu of an appeal bond, we cannot

overlook the untimeliness of his affidavit. In light of such defect, it seems Coomer never

perfected his appeal from the justice court’s order to the district court. See TEX. R. CIV.

P. 572, 573. That said, the district court was never vested with jurisdiction to consider

the merits of Coomer’s case. The trial court’s order signed December 14, 2012, was,

therefore, void. See Miller, 872 S.W.2d at 346.


       Confronted with a void judgment, we must vacate that judgment and dismiss this

appeal for want of jurisdiction. See Crane, 295 S.W.3d at 5; Mellon Serv. Co., 946

S.W.2d at 864.


                                        Conclusion


       Because the district court lacked jurisdiction over Coomer’s appeal from the

justice court’s order, we vacate the district court’s judgment dated December 14, 2012,

and dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(e).




                                                  Mackey K. Hancock
                                                      Justice




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