Ex Parte Thomas Warner

• Court: Court of Appeals of Texas
• Decided: April 7, 2005
• Docket: 07-05-00121-CR
• Status: Published

Opinion

NO. 07-05-0121-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 7, 2005

______________________________

Ex parte THOMAS WARNER,

Appellant

_________________________________

FROM THE 154^TH DISTRICT COURT OF LAMB COUNTY;

NO. 16,507; HON. FELIX KLEIN, PRESIDING _______________________________

Order of Dismissal _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

Thomas Warner appeals from an order dismissing his application for writ of habeas corpus. The writ was sought to obtain release from the purported restraint of Bruce Peel, mayor of Littlefield, Texas. Peel had moved for dismissal, contending that the trial court lacked jurisdiction over the proceedings. The trial court granted the motion. We now dismiss the appeal for lack of jurisdiction.

One may not appeal from an order denying a writ of habeas corpus unless the order arose after a hearing on the merits and the trial court denied the application on the merits. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). Next, granting a motion to dismiss due to the absence of jurisdiction is not a ruling on the merits. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); see also City of Lubbock v. Rule, 68 S.W.3d 853, 857 (Tex. App.-Amarillo 2002, no pet.). So because the trial court dismissed the appeal due to the lack of jurisdiction, we ourselves have no jurisdiction over the appeal. Accordingly, the appeal is dismissed for want of jurisdiction.

Brian Quinn

Justice

Do not publish.

immediately. The court reporter has failed to respond to any communications from either of the appellate clerks.

Accordingly, this appeal is abated and the cause is remanded to the trial court. Tex. R. App. P. 37.3(a)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute these appeals; (2) if appellant desires to prosecute the appeals, whether appellant has requested reporter's records, or designated portions of the reporter's records necessary for appellant's appeals, and if not, what orders should be entered to assure such requests or designations; (3) if the reporter's records have been requested or portions necessary to appellant's appeals designated, what orders or other actions should be directed to the court reporter to assure immediate filing of the reporter's records or such portions of the records as have been designated by appellant; (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeals if appellant does not desire to prosecute the appeals, or, if appellant desires to prosecute the appeals, to assure that the appeals will be diligently pursued. The trial court is directed to enter any orders that it determines necessary and appropriate to assure the proper fulfilment of duties by appellant's attorney, the court reporter, or any other person necessary for diligent prosecution of appellant's appeals, or dismissal of the appeals.

The trial court is directed to: (1) conduct any necessary hearings; (2) enter any necessary orders; (3) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in supplemental clerk's records; (4) cause the hearing proceedings to be transcribed and included in reporter's records; and (5) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's records or the reporter's records. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, reporter's record of the hearing and proceedings pursuant to this order, and any additional proceeding records, including any orders, findings conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than February 15, 2005.

So ordered.

Per Curiam