                                                                                            ACCEPTED
                                                                                        12-14-00016-CV
                                                                           TWELFTH COURT OF APPEALS
                                                                                         TYLER, TEXAS
                                                                                   5/28/2015 2:39:56 PM
                                                                                          CATHY LUSK
                                                                                                 CLERK

                          No. 12-14-00016-CV
           ________________________________________________
                                                                   FILED IN
                                                            12th COURT OF APPEALS
                   IN THE TWELFTH COURT OF           APPEALS TYLER, TEXAS
                                STATE OF TEXAS              5/28/2015 2:39:56 PM
                                                                 CATHY S. LUSK
                             TYLER, TEXAS                            Clerk
           _________________________________________________
                     JUAN ENRIQUEZ, TDCJ # 227122,
                            Plaintiff-Appellant,

                                          v.

                            RICK THALER et al.,
                            Defendants-Appellees.
           _________________________________________________
                 On Direct Appeal from the 3rd Judicial District
                       Court of Anderson County, Texas
                        Trial Court Cause No. 3-41887
           _________________________________________________

      APPELLEES’ RESPONSE IN OPPOSITION TO APPELLANT’S
                  MOTION TO ABATE APPEAL

TO THE HONORABLE JUSTICES OF THE TWELFTH COURT OF APPEALS:

      Appellees Rick Thaler, Brad Livingston, Oliver Bell, Todd Foxworth, John

Rupert, and Reynaldo Castro, through the Office of the Attorney General, submit

this response in opposition to Appellant’s motion to abate appeal. Appellees ask

this Court to deny the motion to abate.

                              STATEMENT OF FACTS

      Appellant alleges claims of racial discrimination and segregation. C.R. at 8-

10. Specifically, Appellant alleges a violation of 42 U.S.C. § 1983 equal protection


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rights. C.R. at 10. Appellant alleges that Appellees have maintained and operated a

racially segregated and racially discriminatory prison system which discriminates

against Hispanics by denying them equal educational opportunities and

rehabilitative programs, housing them in segregated facilities, assigning jobs on

basis of race and color, denying them equal medical and dental treatment, and

disciplining them with harsher punishments. C.R. at 8. Appellant further claims

that Appellees have a policy in place regarding the supervision of their units that

denies equal treatment and services to Hispanics that are “provided routinely to

Anglo inmates.” C.R. at 10.

      The trial court issued an Order of Dismissal on December 11, 2013, for

failure to comply with Chapter 14 of the Texas Civil Practice and Remedies and

Section 501.008 of the Government Code. C.R. at 133.

                          ARGUMENT AND AUTHORITIES

      Texas Rules of Appellate Procedure Rule 27.1 allows an appeal to be filed

prematurely. Rule 27.1(a) states that in a civil case, a prematurely filed notice of

appeal is effective and deemed filed on the day of, but after, the event that begins

the period for perfecting appeal. Here, the Appellant contends that he filed a

motion to vacate “contesting, inter alia, the withdrawal order.” Appellant’s “Plea

to the Jurisdiction” at 2. Appellant argues that the “documentation of costs” was

not provided to him until after he filed his Notice of Appeal. Appellant’s “Plea to


                                         2
the Jurisdiction” at 3. The amount withdrawn from Appellant’s TDCJ Trust Fund

is not a claim against Defendants; the Order of Dismissal lays out that Appellant

was not considered indigent and ordered Appellant to pay in accordance with

CPRC § 14.006 by quoting the language of the statute verbatim. C.R. 133. Costs of

the suit were not an issue presented in the claims brought before the trial court and

should not be considered by this Court. Appellant further pleads that because he

did not receive a ruling on the motion to vacate,1 there was no final judgment from

which to appeal. Appellant’s “Plea to the Jurisdiction” at 3. The unanswered

motion to vacate does not affect the status of the Order of Dismissal as a final

judgment.2

       A judgment is final if it disposes of all pending parties and claims in the

record. Garcia v. Comm'rs Court of Cameron Cnty., 101 S.W.3d 778, 784 (Tex.

App. 2003) (citing Guajardo v. Conwell, 46 S.W.3d 862, 863-64, 44 Tex. Sup. Ct.

J. 693 (Tex. 2001) (per curiam) (citing Lehmann v. Har-Con Corp., 39 S.W.3d

191, 195, 44 Tex. Sup. Ct. J. 364 (Tex. 2001)); Jack B. Anglin Co. v. Tipps, 842

S.W.2d 266, 272, 36 Tex. Sup. Ct. J. 205 (Tex. 1992) (orig. proceeding). In cases


1
  Appellant did not include a proposed order.
2
  If the trial court were to consider Plaintiff’s motion to vacate, the appellate court would then
treat the appeal as from the subsequent order. See TRAP 27.3 (After an order or judgment in a
civil case has been appealed, if the trial court modifies the order or judgment, or if the trial court
vacates the order or judgment and replaces it with another appealable order or judgment, the
appellate court must treat the appeal as from the subsequent order or judgment and may treat
actions relating to the appeal of the first order or judgment as relating to the appeal of the
subsequent order or judgment. Any party may appeal from the subsequent order or judgment).
                                                  3
in which only one final and appealable judgment can be rendered, a judgment

issued without a conventional trial is final for purposes of appeal if and only if

either it actually disposes of all claims and parties then before the court, regardless

of its language, or it states with unmistakable clarity that it is a final judgment.

Lehmann, 39 S.W.3d at 204. The law does not require that a final judgment be in

any particular form. Id. at 195. Therefore, whether a decree is a final judgment

must be determined from its language and the record in the case. Id.

      Here, abating appeal is not proper because the trial court’s Order to Dismiss

constitutes a final judgment. C.R. 133. In addition to listing the reasons for

dismissal under Chapter 14 of the Texas Civil Practices and Remedies Code and

Section 501.008 of the Government Code, the trial court also addressed that the

Plaintiff was not indigent based upon the funds in his inmate trust account on

February 7, 2012. C.R. at 133. The Appellant presented no other claims to be

decided by the trial court for purposes of this lawsuit. In the Order to Dismiss, the

trial court used the language “It is hereby, ORDERED, ADJUDGED AND

DECREED that the action of Plaintiff against Defendant be dismissed without

prejudice.” C.R. at 133. Therefore, all claims and parties were disposed of under

this judgment.

                                    CONCLUSION




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      Appellees request that the Appellant’s Motion to Abate styled as “Plea to the

Jurisdiction” be denied because Appellant has appealed a valid final judgment

from the trial court, giving this court jurisdiction over the appeal.

                                               Respectfully submitted,

                                               KEN PAXTON
                                               Attorney General of Texas

                                               CHARLES E. ROY
                                               First Assistant Attorney General

                                               JAMES E. DAVIS
                                               Deputy Attorney General for Civil
                                               Litigation

                                               KAREN D. MATLOCK
                                               Assistant Attorney General
                                               Chief, Law Enforcement Defense
                                               Division

                                               /s/ Briana M. Webb
                                               BRIANA M. WEBB
                                               Assistant Attorney General
                                               Texas Bar No. 24077883

                                               Law Enforcement Defense Division
                                               Office of the Attorney General
                                               Post Office Box 12548
                                               Austin, Texas 78711-2548
                                               (512) 463-2080 / fax (512) 936-2109


                                               ATTORNEY FOR APPELLEES




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                      NOTICE OF ELECTRONIC FILING

      I, BRIANA M. WEBB, Assistant Attorney General of Texas, do hereby

certify that I have electronically submitted for filing, a true and correct copy of the

above and foregoing Brief in accordance with the electronic filing system for the

Twelfth Court of Appeals on this the 28th day of May, 2015.

                                        /s/ Briana M. Webb
                                        BRIANA M. WEBB
                                        Assistant Attorney General




                          CERTIFICATE OF SERVICE

      I, BRIANA M. WEBB, Assistant Attorney General of Texas, do hereby

certify that a true and correct copy of the above and foregoing has been served by

placing same in the United States Mail, postage prepaid on May 28, 2015,

addressed to Appellant as noted below.

Juan Enriquez, TDCJ# 227122
Michael Unit
2664 FM 2054
Tennessee Colony, Texas 75886
Appellant Pro-se


                                          6
    /s/ Briana M. Webb
    BRIANA M. WEBB
    Assistant Attorney General




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