In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-04-00112-CV
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ROY JON, Appellant
V.
JULIE SPIVEY, ET AL., Appellees
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 04-C-1211-202
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Roy Jon sued the Texas Department of Criminal Justice—Institutional Division and Julie Spivey and Zelda Glass, employees of the institution. Jon alleged defamation, slander, and abuse of official capacity. The trial court dismissed the lawsuit as frivolous January 23, 2002. Jon filed a motion to reform the judgment February 28, 2002, and a notice of appeal May 30, 2002. This Court dismissed the untimely appeal for want of jurisdiction. Jon v. Tex. Dep't of Criminal Justice, No. 06-02-00075-CV, available at <www.6thcoa.courts.state.tx.us>, Select: Opinion Search, Enter Case Number: 02-075-CV (Tex. App.—Texarkana July 2, 2002, no pet.) (not designated for publication).
On September 1, 2004, Jon filed this bill of review action against Spivey. The trial court denied the bill of review, and Jon appeals. Essentially, Jon is once again arguing that his prior appeal was timely. The timeliness of his appeal was addressed in his previous appeal and will not be addressed again.
A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or an appeal. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). Bill of review plaintiffs must ordinarily plead and prove (1) a meritorious claim; (2) which the plaintiffs were prevented from making by fraud, accident, or wrongful act of the opposing party, or official mistake; and (3) unmixed with any fault or negligence on their own part. See id. at 406–07.
In this matter, Jon has not pled or proved any of the elements that are necessary for a bill of review. We find the trial court's order denying the bill of review was not an abuse of discretion, and it is affirmed.
Jack Carter
Justice
Date Submitted: February 8, 2005
Date Decided: February 17, 2005