Shakeel Mustafa v. Pakiza Asim

• Court: Court of Appeals of Texas
• Decided: November 15, 2017
• Docket: 03-17-00476-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-17-00476-CV

Shakeel Mustafa, Appellant

v.

Pakiza Asim, Appellee

FROM COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY NO. 11-0061-FC1, HONORABLE JOE CARROLL, JUDGE PRESIDING

MEMORANDUM OPINION

On July 14, 2017, appellant Shakeel Mustafa filed a notice of appeal from “all

portions of the [April 17, 2017] Order Holding Shakeel Mustafa in Contempt.” Appellee Pakiza

Asim has now filed a motion to dismiss Mustafa’s appeal on the ground that the contempt order is

not reviewable by direct appeal.1 See Ex parte Williams, 690 S.W.2d 243, 243 n.1 (Tex. 1985). In

his response, Mustafa does not dispute that we lack jurisdiction to review the April 17 contempt

order in this appeal. Mustafa, instead, asserts that the motion to dismiss should be denied because

he has now filed a motion to amend his notice of appeal stating that he “no longer desires to

prosecute his appeal from the [April 17 contempt order]” and that he “desires to appeal from a

different order—the July 17, 2017, ‘Order in Suit to Modify the Parent-Child Relationship.’”

1 Although a contempt order is not reviewable by direct appeal, a contempt order “may be attacked by a petition for writ of habeas corpus (if the contemnor is confined) or a petition for writ of mandamus (if no confinement is involved).” In re Office of Attorney Gen. of Tex., 215 S.W.3d 913, 915 (Tex. App.—Fort Worth 2007, orig. proceeding). Rule 25.1(g) of the Texas Rules of Appellate Procedure allows an appellant to file

an amended notice of appeal to “correct a defect or omission in an earlier filed notice.” Tex. R. App.

P. 25.1(g) (emphasis added). Rule 25.1(g) does not, however, allow an appellant to alter his notice

of appeal from appealing one interlocutory order to appealing an entirely separate order. Rainbow

Grp., Ltd. v. Wagoner, 219 S.W.3d 485, 493 (Tex. App.—Austin 2007, no pet.); see also Ganesan

v. Reeves, 236 S.W.3d 816, 817 (Tex. App.—Waco 2007, pet. denied) (noting that rule 27.1,

allowing court of appeals to treat premature notice of appeal as effective, does not allow party to file

notice of appeal as appellate placeholder in anticipation of appeal that may occur somewhere in

indefinite future). Accordingly, we deny Mustafa’s motion to amend his notice of appeal.2

Because a contempt judgment is not reviewable by direct appeal, we do not have

jurisdiction over this appeal. See Ex parte Williams, 690 S.W.2d at 243. We grant Asim’s motion

and dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).

__________________________________________

Scott K. Field, Justice

Before Justices Puryear, Field, and Bourland

Dismissed for Want of Jurisdiction

Filed: November 15, 2017

2 Mustafa has also separately filed a notice of appeal from the July 17 order, and the Clerk of this Court has assigned cause number 03-17-00702-CV to that appeal. Mustafa requests, in the alternative, that the Court transfer the appellate record, which has already been filed in this cause, to his new appeal. We grant this request and direct the Clerk of the Court to transfer the record. We express no opinion as to whether Mustafa’s most recent notice of appeal is timely or whether we have jurisdiction over that appeal. See Tex. R. App. P. 26.1.