Ben W. McCoin v. Red River County, Texas, the State of Texas, District Attorney Val Varley, District Judge John F. Miller, Jr.

• Court: Court of Appeals of Texas
• Decided: April 7, 2004
• Docket: 06-04-00044-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00044-CV

BEN W. McCOIN, Appellant

V.

RED RIVER COUNTY, TEXAS, THE STATE OF TEXAS,

DISTRICT ATTORNEY VAL VARLEY, AND

DISTRICT JUDGE JOHN F. MILLER, JR., Appellees

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On Appeal from the 102nd Judicial District Court

Red River County, Texas

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

          Ben W. McCoin has filed a document pro se that constitutes an attempt to appeal. It appears his complaint has to do with a letter from the district clerk declining to file some form of a civil proceeding against the parties named above. There is no judgment, and there is no order of the trial court. This Court has jurisdiction to hear appeals of final judgments and appealable orders only as provided by the Texas Constitution and the Texas Legislature. Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1997) (final judgment of district and county courts); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985); see, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2004) (specific appealable interlocutory orders). This attempted appeal falls into none of those categories. The submitted documents show on their face we have no jurisdiction to hear this attempted appeal.

          We dismiss the appeal for want of jurisdiction.

                                                                           Josh R. Morriss

                                                                           Chief Justice

Date Submitted:      April 6, 2004

Date Decided:         April 7, 2004

. v. Dernehl. Because the briefs and arguments are in all relevant respects the same as those raised in this appeal, for the reasons stated in that opinion, we affirm the trial court's judgment.

Donald R. Ross

Justice

DISSENTING OPINION

I dissent for the reasons stated in my dissenting opinion in cause number 06-01-00010-CV, MidTexas Pipeline Co. v. Dernehl.

William J. Cornelius

Date Submitted: August 28, 2001

Date Decided: February 26, 2002

Do Not Publish

OPINION ON MOTION FOR REHEARING

For the reasons stated in this Court's opinions in cause numbers 06-01-00010-CV and 06-01-00012-CV, and in the opinions on motions for rehearing thereto, the motion for rehearing filed in this case is overruled.

DISSENTING OPINION ON REHEARING

For the reasons stated fully in my dissenting opinion on original submission, and for the additional reasons expressed here, I would grant MidTexas' motion for rehearing.

The conclusions reached by the majority in this case are directly contrary to the conclusions reached in three cases decided recently in Texas. These cases are Hubenak v. San Jacinto Gas Transmission Co., 2001 WL 1587822 (Tex. App.-Houston [1st Dist.] Dec.13, 2001, no pet. h.); Cusack Ranch Corp. v. MidTexas Pipeline Co., 2001 WL 15538360 (Tex. App.-Corpus Christi, Nov. 29, 2001, no pet. h.); and Hubenak v. San Jacinto Gas Transmission Co., 37 S.W.3d 133 (Tex. App.-Eastland 2001, pet. denied). ⁽¹⁾ Indeed, on the essential issue-whether the inclusion of property rights in addition to the property to be condemned in the condemnor's offer renders that offer ineffectual or not bona fide-the one case relied on by the condemnee and the majority here (although the cite has now been removed from the majority opinion) has now been overruled on rehearing with the opposite result prevailing. See Hubenak v. San Jacinto Gas Transmission Co., 2001 WL 1587822.

There is not one case that now supports the view taken by the majority in this case. If the majority view prevails here, it will add confusion to the law of eminent domain and if followed generally, will thwart the legislative purposes to simplify eminent domain proceedings and to lessen the likelihood of unnecessary litigation and appeals.

I urge the majority not to contribute to the conflicts and to the hypertechnicality in the law of eminent domain by ruling contrary to the settled law set out in the well reasoned opinions in the cases cited here.

I respectfully dissent to the overruling of the motion for rehearing.

Date Decided: February 26, 2002

1. The court in this case held that the fact that the condemnor's offer included rights in addition to those it later sought to condemn did not render the offer invalid as a matter of law, but there was a fact question whether the condemnor negotiated in good faith.