ACCEPTED
12-14-00016-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
5/28/2015 2:39:56 PM
CATHY LUSK
CLERK
No. 12-14-00016-CV
________________________________________________
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
STATE OF TEXAS 5/28/2015 2:39:56 PM
CATHY S. LUSK
TYLER, TEXAS Clerk
_________________________________________________
JUAN ENRIQUEZ, TDCJ # 227122,
Plaintiff-Appellant,
v.
RICK THALER et al.,
Defendants-Appellees.
_________________________________________________
On Direct Appeal from the 3rd Judicial District
Court of Anderson County, Texas
Trial Court Cause No. 3-41887
_________________________________________________
APPELLEES’ RESPONSE IN OPPOSITION TO APPELLANT’S
MOTION TO ABATE APPEAL
TO THE HONORABLE JUSTICES OF THE TWELFTH COURT OF APPEALS:
Appellees Rick Thaler, Brad Livingston, Oliver Bell, Todd Foxworth, John
Rupert, and Reynaldo Castro, through the Office of the Attorney General, submit
this response in opposition to Appellant’s motion to abate appeal. Appellees ask
this Court to deny the motion to abate.
STATEMENT OF FACTS
Appellant alleges claims of racial discrimination and segregation. C.R. at 8-
10. Specifically, Appellant alleges a violation of 42 U.S.C. § 1983 equal protection
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rights. C.R. at 10. Appellant alleges that Appellees have maintained and operated a
racially segregated and racially discriminatory prison system which discriminates
against Hispanics by denying them equal educational opportunities and
rehabilitative programs, housing them in segregated facilities, assigning jobs on
basis of race and color, denying them equal medical and dental treatment, and
disciplining them with harsher punishments. C.R. at 8. Appellant further claims
that Appellees have a policy in place regarding the supervision of their units that
denies equal treatment and services to Hispanics that are “provided routinely to
Anglo inmates.” C.R. at 10.
The trial court issued an Order of Dismissal on December 11, 2013, for
failure to comply with Chapter 14 of the Texas Civil Practice and Remedies and
Section 501.008 of the Government Code. C.R. at 133.
ARGUMENT AND AUTHORITIES
Texas Rules of Appellate Procedure Rule 27.1 allows an appeal to be filed
prematurely. Rule 27.1(a) states that in a civil case, a prematurely filed notice of
appeal is effective and deemed filed on the day of, but after, the event that begins
the period for perfecting appeal. Here, the Appellant contends that he filed a
motion to vacate “contesting, inter alia, the withdrawal order.” Appellant’s “Plea
to the Jurisdiction” at 2. Appellant argues that the “documentation of costs” was
not provided to him until after he filed his Notice of Appeal. Appellant’s “Plea to
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the Jurisdiction” at 3. The amount withdrawn from Appellant’s TDCJ Trust Fund
is not a claim against Defendants; the Order of Dismissal lays out that Appellant
was not considered indigent and ordered Appellant to pay in accordance with
CPRC § 14.006 by quoting the language of the statute verbatim. C.R. 133. Costs of
the suit were not an issue presented in the claims brought before the trial court and
should not be considered by this Court. Appellant further pleads that because he
did not receive a ruling on the motion to vacate,1 there was no final judgment from
which to appeal. Appellant’s “Plea to the Jurisdiction” at 3. The unanswered
motion to vacate does not affect the status of the Order of Dismissal as a final
judgment.2
A judgment is final if it disposes of all pending parties and claims in the
record. Garcia v. Comm'rs Court of Cameron Cnty., 101 S.W.3d 778, 784 (Tex.
App. 2003) (citing Guajardo v. Conwell, 46 S.W.3d 862, 863-64, 44 Tex. Sup. Ct.
J. 693 (Tex. 2001) (per curiam) (citing Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195, 44 Tex. Sup. Ct. J. 364 (Tex. 2001)); Jack B. Anglin Co. v. Tipps, 842
S.W.2d 266, 272, 36 Tex. Sup. Ct. J. 205 (Tex. 1992) (orig. proceeding). In cases
1
Appellant did not include a proposed order.
2
If the trial court were to consider Plaintiff’s motion to vacate, the appellate court would then
treat the appeal as from the subsequent order. See TRAP 27.3 (After an order or judgment in a
civil case has been appealed, if the trial court modifies the order or judgment, or if the trial court
vacates the order or judgment and replaces it with another appealable order or judgment, the
appellate court must treat the appeal as from the subsequent order or judgment and may treat
actions relating to the appeal of the first order or judgment as relating to the appeal of the
subsequent order or judgment. Any party may appeal from the subsequent order or judgment).
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in which only one final and appealable judgment can be rendered, a judgment
issued without a conventional trial is final for purposes of appeal if and only if
either it actually disposes of all claims and parties then before the court, regardless
of its language, or it states with unmistakable clarity that it is a final judgment.
Lehmann, 39 S.W.3d at 204. The law does not require that a final judgment be in
any particular form. Id. at 195. Therefore, whether a decree is a final judgment
must be determined from its language and the record in the case. Id.
Here, abating appeal is not proper because the trial court’s Order to Dismiss
constitutes a final judgment. C.R. 133. In addition to listing the reasons for
dismissal under Chapter 14 of the Texas Civil Practices and Remedies Code and
Section 501.008 of the Government Code, the trial court also addressed that the
Plaintiff was not indigent based upon the funds in his inmate trust account on
February 7, 2012. C.R. at 133. The Appellant presented no other claims to be
decided by the trial court for purposes of this lawsuit. In the Order to Dismiss, the
trial court used the language “It is hereby, ORDERED, ADJUDGED AND
DECREED that the action of Plaintiff against Defendant be dismissed without
prejudice.” C.R. at 133. Therefore, all claims and parties were disposed of under
this judgment.
CONCLUSION
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Appellees request that the Appellant’s Motion to Abate styled as “Plea to the
Jurisdiction” be denied because Appellant has appealed a valid final judgment
from the trial court, giving this court jurisdiction over the appeal.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
KAREN D. MATLOCK
Assistant Attorney General
Chief, Law Enforcement Defense
Division
/s/ Briana M. Webb
BRIANA M. WEBB
Assistant Attorney General
Texas Bar No. 24077883
Law Enforcement Defense Division
Office of the Attorney General
Post Office Box 12548
Austin, Texas 78711-2548
(512) 463-2080 / fax (512) 936-2109
ATTORNEY FOR APPELLEES
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NOTICE OF ELECTRONIC FILING
I, BRIANA M. WEBB, Assistant Attorney General of Texas, do hereby
certify that I have electronically submitted for filing, a true and correct copy of the
above and foregoing Brief in accordance with the electronic filing system for the
Twelfth Court of Appeals on this the 28th day of May, 2015.
/s/ Briana M. Webb
BRIANA M. WEBB
Assistant Attorney General
CERTIFICATE OF SERVICE
I, BRIANA M. WEBB, Assistant Attorney General of Texas, do hereby
certify that a true and correct copy of the above and foregoing has been served by
placing same in the United States Mail, postage prepaid on May 28, 2015,
addressed to Appellant as noted below.
Juan Enriquez, TDCJ# 227122
Michael Unit
2664 FM 2054
Tennessee Colony, Texas 75886
Appellant Pro-se
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/s/ Briana M. Webb
BRIANA M. WEBB
Assistant Attorney General
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Juan Enriquez v. Rick Thaler
Combined Opinion