NO. 07-05-0397-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 26, 2007
______________________________
KENNETH HICKMAN-BEY, APPELLANT
V.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE-CID, ET AL., APPELLEES
_________________________________
FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY;
NO. 4249-H; HONORABLE RON ENNS, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Kenneth Hickman-Bey brings this appeal from the dismissal of his suit against the
Texas Department of Criminal Justice and six employees of the Department. Finding no
final judgment has been rendered by the trial court, we dismiss the appeal for want of
jurisdiction.
While he was incarcerated at a prison unit in Dalhart, appellant filed a grievance
alleging prison officials engaged in discriminatory conduct concerning work assignments
based on appellant’s race. A second grievance alleged different officials interfered with
his practice of his religious beliefs by denying him possession of prayer beads and a
medallion. Both grievances were denied and appellant filed suit against the Department,
“Chaplin Brown,” Betty Parrish-Gary, Roy Romero and Larry Goucher seeking injunctive
relief under 42 U.S.C. § 1983. Attached to the petition were appellant’s affidavit of
indigence, affidavit that he had exhausted administrative remedies, affidavit of previous
filings, a statement of his inmate trust account, and request for issuance of citation. His
first amended petition added Department employees Jasper Maxey and Tamala Alvarez
as defendants.
The Attorney General filed a general denial on behalf of “Douglas Brown, Lynne
Gary, Larry Goucher, Roy Romero, and [the] Texas Department of Criminal Justice-
Correctional Institutional Division.” That office then filed a motion to dismiss on behalf of
the same parties alleging appellant failed to file affidavits of previous filings or exhaustion
of administrative remedies as required by Chapter 14 of the Civil Practice and Remedies
Code. Tex. Civ. Prac. & Rem. Code Ann. Ch. 14 (Vernon 2002). The trial court dismissed
the claims against Douglas Brown, Lynne Gary, Larry Goucher, Roy Romero and the
Department “as frivolous, for failure to comply with the requirements of Chapter Fourteen
of the Civil Practice and Remedies Code.” Appellant now seeks to appeal that order.
Generally, an appeal may be taken only from a final judgment. See Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (stating rule). Appeal can be taken from
interlocutory orders in certain instances authorized by statute. Jack B. Anglin Co., Inc. v.
Tipps, 842 S.W.2d 266, 272 (Tex. 1992); see, e.g., Tex. Civ. Prac. & Rem. Code § 51.014
2
(Vernon Supp. 2006). A judgment is final for purposes of appeal if it disposes of all
pending parties and claims. Lehmann, 39 S.W.3d at 191; North East Independent School
Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). The absence of an appealable order
deprives us of jurisdiction to consider the appeal. Qwest Communications Corp. v. AT &
T Corp., 24 S.W.3d 334, 336 (Tex. 2000).
The order from which this appeal is brought does not dispose of all parties. It does
not dispose of appellant’s claims against Jasper Maxey or Tamela Alvarez. The order
dismissing all claims against Lynne Gary is not a dismissal of claims against the named
defendant, Betty Parrish-Gary.1 The record does not indicate the claims against those
defendants have been severed. Nor does the procedural history of this case permit us to
deem a nonsuit as to those defendants. See Youngstown Sheet & Tube Co. v. Penn, 363
S.W.2d 230, 232 (Tex. 1962) (describing when failure to obtain service on defendant may
be treated as a nonsuit for purposes of determining finality of judgment). The order from
which appellant has given notice of appeal is not a final judgment and is not appealable.
We dismiss the appeal for want of jurisdiction. Tex. R. App. P. 42.3(a).
James T. Campbell
Justice
1
Nothing in the record shows the discrepancy is a misnomer subject to correction
or shows any effort to do so.
3