State of Texas v. Thirty-Nine Thousand Five Hundred Dollars US Currency ($39,500)

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00195-CV

STATE OF TEXAS, APPELLANT

V.

THIRTY-NINE THOUSAND FIVE HUNDRED DOLLARS US CURRENCY ($39,500.00), APPELLEE

On Appeal from the 47th District Court Potter County, Texas Trial Court No. 107758-A-CV, Honorable Dan L. Schaap, Presiding

July 26, 2019

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

Appellant, the State of Texas, attempts to appeal the trial court’s order granting a petition for bill of review, setting aside a default judgment, and ordering a new trial in favor of appellee, Zenayda Guadalupe Portillo-Rodriguez. We dismiss the appeal for want of jurisdiction.

This court has jurisdiction to hear an appeal from a final judgment or from an interlocutory order made immediately appealable by statute. See Lehmann v. Har-Con *2 Corp., 39 S.W.3d 191, 195 (Tex. 2001); Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998) (per curiam). The Texas Supreme Court has held that a bill of review that sets aside a prior judgment but does not dispose of the case on the merits is interlocutory and not appealable. Jordan v. Jordan, 907 S.W.2d 471, 472 (Tex. 1995) (per curiam).

By letter of June 28, 2019, we notified the parties that it did not appear a final judgment or appealable order had been issued by the trial court and directed the State to show how we have jurisdiction over the appeal. The State filed a response claiming that the trial court has treated the order as a final order and, therefore, it is appealable. The State also requested that we “treat the matter as a Petition for Mandamus” as an alternative to dismissing the appeal.

Because the trial court’s order in this case sets aside a prior judgment and grants a new trial on the merits, we are without jurisdiction to review the interlocutory order. Jordan, 907 S.W.2d at 472. We also decline to treat the appeal as a petition for writ of mandamus because the State has not filed a petition or record in accordance with Rule of Appellate Procedure 52.

Accordingly, we dismiss the appeal for want of jurisdiction.¹ TEX. R. APP. P. 42.3(a).

Per Curiam

Footnotes

[1] With its notice, the State filed a motion for an extension of time to file a notice of appeal pursuant to Rule of Appellate Procedure 26.3. In response, Portillo-Rodriguez filed a motion opposing the extension and requesting dismissal of the appeal. Because we dismiss the appeal for want of jurisdiction, the motions are rendered moot.