Mayra Isabel Bustamante v. Erik Bustamante

• Court: Texas Court of Appeals, 1st District (Houston)
• Decided: February 3, 2026
• Docket: 01-25-00625-CV
• Status: Published

Opinion

Opinion issued February 3, 2026

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-25-00625-CV ——————————— MAYRA ISABEL BUSTAMANTE, Appellant V. ERIK BUSTAMANTE, Appellee

On Appeal from the 505th District Court Fort Bend County, Texas Trial Court Case No. 24-DCV-321554

MEMORANDUM OPINION

Appellant, Mayra Isabel Bustamante, seeks to appeal an order granting a bill

of review setting aside and vacating the trial court’s January 20, 2023 judgment rendered in cause number 20-DCV-273938.1 We dismiss the appeal for lack of

jurisdiction.

Generally, appellate courts have jurisdiction only over appeals from final

judgments unless a statute authorizes an interlocutory appeal. CMH Homes v. Perez,

340 S.W.3d 444, 447–48 (Tex. 2011); see N.Y. Underwriters Ins. Co. v. Sanchez,

799 S.W.2d 677, 679–80 (Tex. 1990) (“In the absence of a special statute making an

interlocutory order appealable, a judgment must dispose of all issues and parties in

the case . . . to be final and appealable.”).

“A bill of review which sets aside a prior judgment but does not dispose of all

the issues of the case on the merits is interlocutory in nature and not a final judgment

appealable to the court of appeals or the supreme court.” Kiefer v. Touris, 197

S.W.3d 300, 302 (Tex. 2006) (per curiam) (quoting Tesoro Petroleum v. Smith, 796

S.W.2d 705, 705 (Tex. 1990) (per curiam)); see Patrick O’Connor & Associates,

L.P. v. Wang Inv. Networks, Inc., No. 01-12-00615-CV, 2013 WL 1451358, at *1, 3

(Tex. App.—Houston [1st Dist.] Apr. 9, 2013, no pet.) (“It is a well-established rule

in Texas that if a judgment rendered in a bill of review proceeding does not dispose

of the entire controversy, it is interlocutory in nature and not a final judgment from

which an appeal will lie.”). An appeal from an interlocutory order granting bill of

1 The order granting bill of review was signed by the associate judge on February 20, 2025. Appellant asserts that the order was subsequently adopted by the presiding district court judge at a hearing held on July 9, 2025. 2 review is not authorized by statute. See Small v. Garcia, No. 01-18-00710-CV, 2019

WL 3293694, at *2 (Tex. App.—Houston [1st Dist.] July 23, 2019, no pet.) (“The

grant of a bill of review is not one of the interlocutory orders permitted to be

appealed under Section 51.014(a) of the Civil Practice and Remedies Code.”).

Here, the trial court’s order granting the bill of review set aside the prior

judgment but did not dispose of the case on the merits. Because the order is neither

a final judgment nor an appealable interlocutory order, our Court lacks jurisdiction

over the appeal. See Kiefer, 197 S.W.3d at 302.

On November 3, 2025, appellant filed a motion requesting voluntary dismissal

of the appeal without prejudice, asserting that “[a]fter Appellant received and

reviewed the Clerk’s Record and court transcripts, it became evident that mandamus

is the proper vehicle for appellate court review.”2 On November 13, 2025, the Clerk

of this Court notified appellant that she can seek to appeal an eventual final judgment

resulting from the granting of the bill of review, but the Court would not dismiss the

pending appeal from the bill of review order without prejudice because the Court’s

2 While this appeal was pending, appellant filed a petition for writ of mandamus challenging the order granting bill of review. See In re Mayra Isabel Bustamante, No. 01-25-00898-CV, 2025 WL 3165473, at *1 (Tex. App.—Houston [1st Dist.] Nov. 13, 2025, orig. proceeding) (mem. op.). Our Court denied the petition, explaining that “‘the general rule stated by both this Court and our sister court in Houston is that an interlocutory order granting a bill of review may not be reviewed by mandamus, but by appeal of the eventual final judgment in the case.’” Id. (quoting Patrick O’Connor & Associates, 2013 WL 1451358, at *1-2). Appellant’s motion for rehearing was denied on December 9, 2025. 3 plenary power eventually expires. See TEX. R. APP. P. 19.1; see also Simpson v. City

of San Antonio, No. 08-10-00229-CV, 2010 WL 3708850, at *1 (Tex. App.—El

Paso Sept. 22, 2010, no pet.) (“[Rule 42.1] does not permit this Court to dismiss an

appeal, ‘without prejudice to the refiling.’”). The Court requested that appellant file

a response advising whether she seeks to dismiss the appeal absent the “without

prejudice” language requested in the motion. The Court further notified appellant

that because the order is neither a final judgment nor an appealable interlocutory

order, even if she no longer seeks voluntary dismissal, the appeal was subject to

dismissal for want of jurisdiction unless appellant filed a written response

demonstrating the Court’s jurisdiction over the appeal. See TEX. R. APP. P. 42.3(a)

(allowing involuntary dismissal of appeal after notice). Appellant filed a response

continuing to request voluntary dismissal of the appeal without prejudice but failed

to address the Court’s lack of jurisdiction over the appeal.

Accordingly, for the reasons discussed, we dismiss the appeal for lack of

jurisdiction. See TEX. R. APP. P. 42.3(a), (c), 43.2(f). Our dismissal of this appeal

from the order granting bill of review does not impact any right to appeal the

eventual final judgment. Any pending motions are dismissed as moot.

PER CURIAM

Panel consists of Chief Justice Adams and Justices Gunn and Johnson.