Jimmy Diaz v. A.M. Stringfellow Unit

Motion Granted in Part; Dismissed and Memorandum Opinion filed April 23,
2015.

In The

Fourteenth Court of Appeals

NO. 14-15-00253-CV

JIMMY DIAZ, Appellant
V.

A.M. STRINGFELLOW UNIT, ET AL. 1, Appellees

On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2014-68893

MEMORANDUM OPINION

On March 16, 2015, appellant, an inmate appearing pro se, filed a notice of
appeal objecting to the denial of his request to be present at a hearing scheduled for
March 20, 2015. When the appeal was assigned to this court, the Harris County
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Appellant’s notice of appeal states that the appellees are the A.M. Stringfellow Unit,
Allen Hightower Regional Medical Health Care Provider, Major Warden Frankey Reescano,
Assistant Warden Kenneth Jolley, Captain Graham, Marcus Hinkle, M.D., LVN-Practitioners
Freemen and Patricia Lecuyer, and the Texas Department of Criminal Justice—Institutional
Division.
District Clerk’s office advised the court that no judgment or order had been signed
by the trial court.

Generally, appeals may be taken only from final judgments. Lehmann v.
Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be
appealed only if authorized by statute. Bally Total Fitness Corp. v. Jackson, 53
S.W.3d 352, 352 (Tex. 2001).

On March 30, 2015, this court notified appellant that the appeal was subject
to dismissal for want of jurisdiction unless he filed a response demonstrating our
jurisdiction over the appeal. In addition, the court’s notice advised appellant that as
an inmate seeking to proceed without payment of costs, he is required to comply
with Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac.
& Rem. Code Ann. § 14.004 (West Supp. 2014); see also Douglas v. Moffett, 418
S.W.3d 336, 339 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

On April 8, 2015, appellant filed a motion to dismiss the appeal. In the
motion, appellant agrees that no final appealable order has been signed in the court
below. He complains that the Harris County District Clerk should not have
forwarded his notice of appeal to this court, and therefore, he should not be
required to pay the costs of the appeal.

It is well settled that a district clerk is required to forward a notice of appeal
to the appellate court for the court’s determination of compliance with the
appellate rules and jurisdiction over the appeal. See In re Smith, 263 S.W.3d 93, 95
(Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). “Once a notice of appeal
is delivered to the clerk for filing, whether it is timely or untimely, the
determination of appellate jurisdiction must be made by the appellate court.
Accordingly, the clerk must file and forward to the appropriate appellate court the
notice of appeal . . . .” Id. Therefore, we deny appellant’s requested relief regarding
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costs of the appeal.

On April 17, 2014, the Harris County District Clerk provided this court with
a copy of the trial court’s interlocutory order signed March 20, 2015, declaring
appellant to be a vexatious litigant and requiring him to furnish security before
proceeding with his suit. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.051–.055
(West 2002 & Supp. 2014). There is no statutory provision authorizing an appeal
of an interlocutory order declaring a person a vexatious litigant, or of an order
prohibiting a person from filing new litigation without permission of the local
administrative judge. See Almanza v. Keller, 345 S.W.3d 442, 443 (Tex. App.—
Waco 2011, no pet.) (holding “there is no statutory right of an interlocutory appeal
of a vexatious litigant order or the related order requiring security.”); Douglas v.
Hon. Tex. Bd. of Pardons & Paroles, No. 14-11-00527-CV, 2012 WL 1154367, at
*1 (Tex. App.—Houston [14th Dist.] Apr. 5, 2012, no pet.) (mem. op.) (dismissing
an interlocutory appeal from an order declaring appellant to be a vexatious
litigant).

Accordingly, we grant the portion of appellant’s motion requesting that the
appeal be dismissed for want of jurisdiction, but we deny any other requested
relief.

The appeal is ordered dismissed.

PER CURIAM

Panel consists of Justices Boyce, McCally, and Donovan.

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