Kenneth Hickman-Bey v. Texas Department of Criminal Justice

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-12-00490-CV

KENNETH HICKMAN-BEY, APPELLANT

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL., APPELLEES

On Appeal from the 69th District Court
Hartley County, Texas
Trial Court No. 4249H, Honorable Ron Enns, Presiding

April 11, 2014

MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Kenneth Hickman-Bey, a prison inmate appearing pro se and in forma pauperis,

appeals a trial court order of October 23, 2012, purporting to “dismiss” all named

defendants in Hickman-Bey’s lawsuit for failure to comply with Civil Practice and

Remedies Code Chapter 14.1 Finding the trial court lost jurisdiction in the case over two

years earlier, making the order on appeal void, we will vacate the order.

1
The only identification of a party defendant appearing in the order is the
heading designation, “TDCJ-CID, et al[.]”
 Background

On March 8, 2005, Hickman-Bey filed suit under 42 U.S.C. § 1983, complaining

of racial and religious discrimination by the Texas Department of Criminal Justice-

Criminal Institutional Division, “Chaplain” Brown, Betty Parrish-Gary, Roy Romero, and

Larry Goucher. The case was assigned cause number 4249H by the district clerk.

Through a March 18, 2005 amended petition, Hickman-Bey added Jasper Maxey

and Tamala Alvarez as defendants. The Office of Attorney General (OAG) answered

on behalf of the Department, Brown, Goucher, Romero, and “Lynne Gary.” The OAG

then filed a motion to dismiss under Chapter 14 2 on behalf of the same parties. By

order of September 28, 2005, the trial court dismissed the claims against the

Department, Brown, Goucher, Romero, and “Lynne Gary,” finding them “frivolous, for

failure to comply with the requirements of Chapter Fourteen of the Civil Practice and

Remedies Code.”

Hickman-Bey appealed. By opinion of April 26, 2007, we dismissed the

attempted appeal for want of jurisdiction.3 We found the order from which Hickman-Bey

attempted to appeal did not dispose of the claims against Alvarez and Maxey. Nor did

the stated dismissal of claims against “Lynne Gary” dispose of those against the named

defendant, Betty Parrish-Gary.

2
TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001-14.014 (West 2002 & Supp.
2014).
3
Hickman-Bey v. Texas Dep’t of Crim. Justice-C.I.D., No. 07-05-0397-CV, 2007
Tex. App. LEXIS 3278 (Tex. App.—Amarillo April 26, 2007, no pet.) (mem. op.).

2
 By letter to the parties of September 22, 2008, the trial court noted the remaining

defendants in the case were Betty Parrish-Gary and the “unserved” defendants Alvarez

and Maxey. It stated the intention to dismiss Parrish-Gary by the 2005 order and

directed the OAG to submit an order of dismissal in that form for signature. An October

29, 2008 order of the trial court stated “all causes of action in the above-captioned

matter against Betty Parrish-Gary should be and are DISMISSED in their entirety nunc

pro tunc as frivolous for failure to comply with the requirements of TEX. CIV. PRAC. &

REMS. (sic) CODE § 14.”4

Hickman-Bey filed a notice of appeal in this court challenging the October 29

order. We dismissed the attempted appeal for want of jurisdiction,5 finding the October

29 order, whether considered singularly or in concert with the September 28, 2005

order, did not dispose of Hickman-Bey’s claims against Alvarez or Maxey.

Hickman-Bey obtained service of his lawsuit on Maxey and Alvarez, but neither

answered. By separate orders signed September 15, 2010, the trial court rendered

default judgments against Alvarez and Maxey finally disposing of all his claims against

these two defendants. In letters to the parties dated March 7 and June 18, 2012, the

trial court indicated it no longer possessed jurisdiction over cause number 4249H,

because the September 15, 2010 default judgments were final and disposed of all

remaining parties in the case.

4
Bolding, capitalization and italics are in the original order.
5
Hickman-Bey v. Tex. Dep’t of Crim. Justice-C.I.D., No. 07-09-0068-CV, 2009
Tex. App. LEXIS 5627 (Tex. App.—Amarillo July 22, 2009, no pet.) (mem. op.).

3
 Thereafter, Alvarez filed a bill of review which was assigned trial court cause

number 4739H. From the trial court’s order granting the bill of review, Hickman-Bey

filed a notice of appeal. In a March 21, 2013 opinion, we dismissed the attempted

appeal for want of jurisdiction, pointing out an interlocutory order granting a bill of review

is not appealable.6

In trial court cause number 4249H, Alvarez filed a motion to dismiss the case on

September 10, 2012. She asserted there were substantive defects in Hickman-Bey’s

case. In an October 23, 2012 order, the trial court dismissed “all of [Hickman-Bey’s]

causes of action” in cause number 4249H “against all named Defendants.” On

November 5, 2012, Hickman-Bey filed a “motion to set aside judgment,” and a notice of

appeal. The record contains no indication the trial court ruled on Hickman-Bey’s

motion.

6
Hickman-Bey v. Alvarez, No. 07-12-0403-CV, 2013 Tex. App. LEXIS 3142 (Tex.
App.—Amarillo Mar. 21, 2013, no pet.) (per curiam, mem. op.). As we there explained,
the merits of Hickman-Bey’s claim against Alvarez were not determined in the trial
court’s order setting aside the default judgment. Id. at *1.

In a bill of review proceeding, the final judgment should either deny the petitioner
any relief, or grant the bill of review, set aside the former judgment, to the extent
attacked, and substitute a new judgment which properly adjudicates the controversy. In
re J.B.A., 127 S.W.3d 850, 851 (Tex. App.—Fort Worth 2004, no pet.). If the trial court
grants a bill of review and sets aside a judgment in a prior case, the subsequent trial on
the merits of the prior case occurs in the same proceeding as the trial on the bill of
review. Hartford Underwriters Ins. v. Mills, 110 S.W.3d 588, 591 (Tex. App.—Fort
Worth 2003, no pet.) (citing State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 465
(Tex. 1989) (per curiam)). We have no indication of further action by the parties in
cause number 4739H after our mandate issued, and it would appear Hickman-Bey’s
claims against Alvarez remain pending in cause number 4739H.

4
 Analysis

“Because the law does not require that a final judgment be in any particular form,

whether a judicial decree is a final judgment must be determined from its language and

the record in the case.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

An interlocutory order disposing of fewer than all parties and claims is not final until

entry of a subsequent order disposing of the remaining parties and claims. Columbia

Rio Grande Regional Hosp. v. Stover, 17 S.W.3d 387, 391 (Tex. App.—Corpus Christi

2000, no pet.) (citing Mafrige v. Ross, 866 S.W.2d 590, 591 n.5 (Tex. 1993); H. B.

Zachry Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex. 1963) (per curiam). On entry of

an order disposing of all remaining parties and claims, the interlocutory orders merge

creating a final, appealable judgment. Stover, 17 S.W.3d at 391. See Onyung v.

Onyung, No. 01-10-00519-CV, 2013 Tex. App. LEXIS 9190, at *25-26 (Tex. App.—

Houston [1st Dist.] July 25, 2013, pet. denied) (mem. op.) (citing Noorian v.

McCandless, 37 S.W.3d 170, 173 (Tex. App.—Houston [1st Dist.] 2001, pet. denied))

(“In some circumstances, ‘a final judgment may consist of several orders that

cumulatively dispose of all parties and issues’”). See also In re White, No. 04-09-

00108-CV, 2009 Tex. App. LEXIS 4106 (Tex. App.—San Antonio June 10, 2009, orig.

proceeding) (mem. op.) (appellate court concluded two default judgments collectively

constituted a final judgment over which the trial court lost plenary power thirty days after

the date it signed the two default judgments); Texas Sting, Ltd., v. R.B. Foods, Inc., 82

S.W.3d 644, 648 n.4 (Tex. App.—San Antonio 2002, pet. denied) (court dismissed

plaintiffs’ claims for want of prosecution and later rendered default judgment against

plaintiffs on defendant’s counterclaim; default judgment constituted final disposition of

5
all of parties’ claims); Campbell v. Kosarek, 44 S.W.3d 647, 649 (Tex. App.—Dallas

2001, pet. denied) (interlocutory dismissal order made final on disposition of remaining

parties).

Here, the trial court dismissed the Department, Brown, Goucher, and Romero by

its September 28, 2005 order. The October 29, 2008 order dismissed Parrish-Gary.

Hickman-Bey’s claims against the remaining defendants, Alvarez and Maxey, were

disposed of by the September 15, 2010 default judgments. Thus by September 15,

2010, Hickman-Bey’s claims against all defendants had been disposed of through the

four written orders signed by the trial court. For purposes of appellate review, those

four written orders together constituted a final judgment in cause number 4249H.

Stover, 17 S.W.3d at 391; Onyung, 2013 Tex. App. LEXIS 9190, at *25-26. A timely

motion extending the trial court’s plenary power was not filed after September 15, 2010.

TEX. R. CIV. P. 329b. As a result, the trial court’s plenary power to affect its judgment in

cause number 4249H expired on October 15, 2010. TEX. R. CIV. P. 329b(d).

This, in turn, means the October 23, 2012 order Hickman-Bey now challenges on

appeal was signed long after the expiration of the trial court’s plenary power to affect its

judgment in cause number 4249H. The October 23, 2012 order is void. See In re

Dickason, 987 S.W.2d 570, 570-71 (Tex. 1998) (orig. proceeding) (per curiam) (holding

trial court order granting new trial signed after expiration of plenary power was void).

For the same reason, Hickman-Bey’s notice of appeal of the trial court’s October

23, 2012 order is ineffective as a vehicle for appellate review of the court’s orders

disposing of the claims he asserted in cause number 4249H. The appellate timetable in

6
cause number 4249H began running with the signing of the September 15 default

judgments. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per

curiam) (appellate timetable runs from day court signed “whatever order disposes of any

parties or issues remaining before the court”). Notice of appeal of the trial court’s

judgment in cause number 4249H was thus due for filing on October 15, 2010.

Appellate jurisdiction is properly invoked by timely filing a notice of appeal. See TEX. R.

APP. P. 25.1. Hickman-Bey’s notice of appeal filed in cause number 4249H on

November 5, 2012 could not invoke our appellate jurisdiction. See Wilkins v. Methodist

Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005).7

Conclusion

Accordingly, we vacate the trial court’s October 23, 2012 order in cause number

4249H. Insofar as the current appeal is an attempt to invoke our appellate jurisdiction

over trial court cause number 4249H, we dismiss the appeal for want of jurisdiction.8

James T. Campbell
Justice

7
We notified the parties by letter that on our own motion we questioned our
jurisdiction over an appeal of cause number 4249H. We afforded them an opportunity
to demonstrate the existence of our appellate jurisdiction in that case. Neither
responded.
8
See State v. Morales, 869 S.W.2d 941, 949 (Tex. 1994) (“When a court lacks
jurisdiction, its only legitimate choice is to dismiss”); TEX. R. APP. P. 42.3(a).

7