IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
FEBRUARY 14, 2002
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IN RE RESHAWN L. JOHNSON, RELATOR
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Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
ON MOTIONS FOR LEAVE TO FILE AND ENFORCEMENT OF DECISION
Relator Reshawn L. Johnson previously filed a Petition for Writ of Mandamus asking us to order the Honorable Bradley S. Underwood, Judge of the 364th District Court of Lubbock County, to enter an order on his "Motion for Intra-Loan for Trial Court Transcript" so that he might prepare a pro se post-conviction application for writ of habeas corpus. We conditionally granted that petition.
Currently before us in the same proceeding is relator's "Motion for Leave to File Motion to Compel the Court to Recognize Defendant's Request to Exercise Right to Appeal," in which he asks us to find that respondent has violated his rights because respondent has failed as of January 7, 2002, to enter an order on his motion for loan of the trial court transcript. Further, he requests that we grant his request for a loan of the trial transcript "solely because Respondent has acted without reference to any guiding rules or principles, and which acts was [sic] arbitrary and unreasonable." Relator has also filed a "Motion for Enforcement of Decision on Review" in which he asks that we enforce our ruling on his petition for writ of mandamus.
We have received a supplemental record showing that the trial court entered an order denying relator's "Motion for Intra-Loan Trial Court Transcript" on December 6, 2001. Therefore, relator has received the relief he requested by way of his petition for writ of mandamus, i.e., the entry of an order by the trial court. His actual request for a loan of the trial court transcript is not properly before the court at this time. For these reasons, relator's motions are overruled.
Per Curiam
Do not publish.
rulings of breach of fiduciary duties and unlawful civil conspiracy against Reginald S.Y. Lee, Andrews & Kurth, L.L.P. may re-submit to the Dependent Administrator its claim for attorneys' fees and expenses . . . .
Andrews Kurth's present motion advises us that its appeal will present one issue, that being its contention the trial court's interlocutory order improperly denied the firm fees for its representation of Lee. The motion asserts that summary reversal and remand of the trial court order without full briefing is appropriate. Considering the record before us in light of Andrews Kurth's motion, we conclude the appeal is premature.
Section 5(f) of the Probate Code provides "[A]ll final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeal." TEX. PROB. CODE §5(f) (emphasis added). To be appealable under that authority, a probate order must be conclusive of the issue for which the particular part of the proceeding was brought. Wittner v. Scanlan, 959 S.W.2d 640, 641 (Tex.App.-Houston [1st Dist.] 1995, writ denied) (citing Fischer v. Williams, 331 S.W.2d 210, 213 (Tex. 1960)). "A probate order is appealable if it finally adjudicates a substantial right: if it merely leads to further hearings on the issue, it is interlocutory." Wittner, 959 S.W.2d at 642; see also Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995) (stating "if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory").
In the present case, the trial court's order states that if the judgment against Lee "is reversed as to the rulings of breach of fiduciary duties and unlawful civil conspiracy against Reginald S.Y. Lee, Andrews & Kurth, L.L.P. may re-submit to the Dependent Administrator its claim for attorneys' fees and expenses . . . ." (emphasis added). The trial court's order anticipates further consideration of Andrews Kurth's claim following disposition of Lee's appeal under certain circumstances. Because, under the terms of the order, there is the potential for further hearings regarding Andrews Kurth's claim for fees and expenses, we conclude the trial court's order is merely interlocutory and does not present a final appealable order. Crowson, 897 S.W.2d at 783, Wittner, 959 S.W.2d at 642. (1)
We have jurisdiction to consider the appeal of an interlocutory order only when expressly provided by statute. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998) (per curiam). Finding the order appealed is interlocutory and no statute permits our consideration of it, we dismiss Andrews Kurth's appeal for want of jurisdiction. TEX. R. APP. P. 42.3. Accordingly, we also dismiss Andrews Kurth's requests for judicial notice and for a stay of the briefing deadlines as moot.
James T. Campbell
Justice
1. Andrews Kurth recognizes in its motion that Lee and his attorneys are "entitled to pursue below the return of what they lost: an award of attorneys' fees for that defense that has now been vindicated on appeal." (emphasis added)