Dan Thomas v. Richard McKee

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In The



Court of Appeals



Ninth District of Texas at Beaumont

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NO. 09-03-371 CV

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DAN THOMAS, Appellant



V.



RICHARD MCKEE, Appellee



On Appeal from the 258th District Court

Polk County, Texas

Trial Cause No. 17927



MEMORANDUM OPINION (1)

Dan Thomas appeals the denial of his motion to discharge costs in his suit against Richard McKee. We questioned our jurisdiction. Thomas's reply asserts that the trial court's order is an appealable final order.

Thomas appealed this suit, Cause No. 17927, to this Court in Appeal No. 09-00-548 CV. The appeal was transferred to the Thirteenth Court of Appeals and docketed as Appeal No. 13-01-020 CV. On July 12, 2001, the Thirteenth Court of Appeals addressed the issue of taxation of costs in its opinion affirming the trial court's judgment. See Thomas v. McKee, No. 13-01-00020-CV (Tex. App.-Corpus Christi July 12, 2001, pet. denied)(not designated for publication). A petition for review to the Texas Supreme Court was denied, and the Thirteenth Court of Appeals issued its mandate on April 19, 2002. On March 28, 2003, Thomas filed a motion titled "Petition to Discharge Court Ordered Cost Due to Inability to Pay Such Cost of $213.00 Herein." The motion alleged that the judgment for costs should be discharged pursuant to a statute applicable to criminal cases. See Tex. Code Crim. Proc. Ann. art. 43.09(f) (Vernon Supp. 2003) ("A court may require a defendant who is unable to pay a fine or costs to discharge all or part of the fine or costs by performing community service."). The trial court denied the motion on April 14, 2003.

An issue relating to a judgment for costs must be brought in the regular appeal. See Smith v. State, 500 S.W.2d 682 (Tex. App.-Corpus Christi 1973, no writ). Thomas actually raised the cost issue in his appeal, and lost. The judgment in this case is now final. The order identified in the notice of appeal is not amenable to a new appeal. The appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.

PER CURIAM



Opinion Delivered September 25, 2003

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.