Deidre Elane Schamp v. Edward Mitchell

• Court: Court of Appeals of Texas
• Decided: November 14, 2014
• Docket: 04-14-00741-CV
• Status: Published

Opinion

Edward

Fourth Court of Appeals San Antonio, Texas November 14, 2014

No. 04-14-00741-CV

Deidre Elane SCHAMP, Appellant

v.

Edward MITCHELL, Appellee

From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-20583 Honorable Solomon Casseb, III, Judge Presiding

ORDER On October 23, 2014, Deidre Elane Schamp filed a restricted appeal from the trial court’s Enforcement Order signed on May 6, 2014. A clerk’s record containing the order has been filed. The Enforcement Order recites that Schamp “appeared in person and announced ready for trial” on April 14, 2014. The docket sheet reflects the trial on the merits was held April 14, 2014. The recital in the order raises a question about our jurisdiction over the appeal.

A restricted appeal is available only to “a party who did not participate—either in person or through counsel—in the hearing that resulted in the judgment complained of” and who did not timely file a postjudgment motion, request for findings of fact and conclusions of law, or notice of appeal. TEX. R. APP. P. 30. These requirements are mandatory and jurisdictional. See In re B.H.B., 336 S.W.3d 303, 305 (Tex. App.—San Antonio 2010, pet. denied); Lake v. McCoy, 188 S.W.3d 376, 378 (Tex. App.—Dallas 2006, no pet.); Attorney Gen. of Tex. v. Orr, 989 S.W.2d 464, 466 (Tex. App.—Austin 1999, no pet.). We presume the recital in the judgment to be true. See Serna v. Webster, 908 S.W.2d 487, 491 n.1 (Tex. App.—San Antonio 1995, no writ). If the presumption is not rebutted, then it appears that a restricted appeal is not available to Schamp.

We order appellant may file a response no later than November 26, 2014, showing cause why this appeal should not be dismissed for lack of jurisdiction. Appellant has the burden to request the trial court clerk prepare a supplemental clerk’s record containing any pleading or order necessary to show this court’s jurisdiction. Appellant must file a copy of any such request with this court. If appellant fails to satisfactorily respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c). All deadlines in this matter are suspended until further order of the court.

_________________________________ Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 14th day of November, 2014.

___________________________________ Keith E. Hottle Clerk of Court