IN THE
TENTH COURT OF APPEALS
No. 10-98-329-CV
IBN KHEDRU ANKH, A/K/A
FREDERICK LOUIS PUGH,
Appellant
v.
T.D.C.J.—I.D.,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court # 31,434
MEMORANDUM OPINION
Appellant filed suit against appellee for alleged civil rights violations. The court dismissed the proceeding by written order on May 14, 1998. Appellant filed a “Request for Reconsideration” on May 22. He filed notice of appeal on October 19, 158 days after the court dismissed his lawsuit. Thus, his notice of appeal is untimely. See Tex. R. App. P. 26.1; Raley v. Lile, 861 S.W.2d 102, 105-06 (Tex. App.—Waco 1993, writ denied) (untimely appeal bond). Because appellant did not timely file his notice of appeal, we lack jurisdiction over the appeal. Id. Accordingly, we dismiss the appeal for want of jurisdiction.
PER CURIAM
Before Chief Justice Davis,
Justice Vance, and
Chief Justice McDonald (retired)
Dismissed for want of jurisdiction
Opinion delivered and filed November 4, 1998
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0;On January 29, 1997, Fleming filed both a response to the motion to dismiss and a petition for a writ of mandamus against Judge Duncan, entreating this court to order him to send the case to arbitration. In its response to the motion to dismiss, Fleming did not affirmatively contest the grounds upon which David's sought to have the interlocutory appeal dismissed. Instead, it explained that the arbitration clause contained in the 1992 agreement may be governed both by the Federal Arbitration Act and the Texas General Arbitration Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 171.001-.023 (Vernon Pamph. 1997), pointing out that one must proceed by mandamus to seek review of the denial of a motion to arbitrate under federal law, but may seek an interlocutory appeal if the agreement is governed by Texas law. Thus, its dual proceedings were an attempt to make certain that its complaint was heard by this court in either case. See Jack B. Anglin. Co., Inc. v. Tipps, 842 S.W.2d 266, 271-72 (Tex. 1992) (orig. proceeding).
The arbitration clause in the 1992 agreement reads, in full:
Disputes; Arbitration. The parties agree that all disputes between them relating to this Agreement are to be resolved by arbitration as provided in this Agreement. This agreement to arbitrate will survive the rescission or termination of the Agreement. All arbitration will be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association except as may be provided for in this Agreement. The panel used will be selected from, if available, the "Food Industry Panel" employed by the American Arbitration Association and the decision of the arbitrators will be final and binding on all parties. All arbitration will be undertaken pursuant to the Federal Arbitration Act, where applicable, and the decision of the arbitrators will be enforceable in any court of competent jurisdiction.
(Emphasis by italics added.)
It is clear by the wording of the arbitration clause that the 1992 agreement is subject to the Federal Arbitration Act. Even assuming that the 1992 agreement applies to the controversy between the parties, any agreement between them to arbitrate their dispute is governed by the federal legislation. See Metropolitan Property and Liab. Ins. Co. v. Bridewell, 933 S.W.2d 358, 361 (Tex. App.—Waco 1996, orig. proceeding). In Texas, a party may not seek appellate review of the denial of a motion to compel arbitration under the Federal Arbitration Act by interlocutory appeal. Jack B. Anglin, 842 S.W.2d at 272; see Metropolitan Property, 933 S.W.2d 358, 361. The only remedy is a petition for a writ of mandamus. Id.
Unless permitted by statute, Texas courts have no jurisdiction to consider an interlocutory appeal. Jack B. Anglin, 842 S.W.2d at 272; see Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 1997). As there is no statutory authorization for Fleming's interlocutory appeal, we have no jurisdiction over the cause. See Jack B. Anglin, 842 S.W.2d at 272; D. Wilson Constr. Co. v. McAllen Indep. Sch. Dist., 848 S.W.2d 226, 228 (Tex. App.—Corpus Christi 1992, writ dism'd w.o.j.).
Therefore, David's motion to dismiss for want of jurisdiction is granted, and the appeal is dismissed.
PER CURIAM
Before Justice Cummings,
Justice Vance, and
Chief Justice McDonald (Retired)
Dismissed for want of jurisdiction
Opinion delivered and filed February 26, 1997
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