NUMBER 13-10-00451-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
STEVE SCHWERIN, Appellant,
v.
NUECES COUNTY JUVENILE BOARD, NUECES COUNTY, TEXAS AND MICHAEL L. LINDSAY D/B/A NESTOR CONSULTANTS, INC., Appellees.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion by Justice Garza
Appellant, Steve Schwerin, appeals an order granting appellee Nueces County,
Texas’s plea to the jurisdiction. Specifically, appellant complains of: (1) the failure of
the Presiding Judge of the Fifth Administrative Region to properly respond to his motion for disqualification; (2) inadequate notice of a hearing on a plea to the jurisdiction
decided in favor of appellee; and (3) the failure of the Presiding Judge of the Fifth
Administrative Region and the assigned trial judge to properly respond to his motions
for disqualification and recusal. Because we conclude that the appeal is untimely, we
do not reach these issues and dismiss this case for lack of jurisdiction.
I. BACKGROUND
This appeal arises from a lawsuit that appellant filed against Nueces County, the
Nueces County Juvenile Board (collectively “Nueces County” or “the County”), and
Michael L. Lindsey d/b/a Nestor Consultants, Inc. (“Lindsey”) for claims related to
appellant’s termination as the Chief Juvenile Probation Officer of Nueces County in
2006.1 On August 25, 2009, as Presiding Judge of the Fifth Administrative Judicial
Region, Judge Manuel Bañales assigned Judge Jose Luis Garza to hear the case.
Nueces County filed a plea to the jurisdiction maintaining that it was immune from suit
against all of appellant’s claims. On May 26, 2010, the day before the hearing on the
County’s plea, appellant filed a “Motion to Disqualify and Declare all Orders in this
Matter by Judge J. Manuel Bañales Void.” In the motion, appellant requested that
Judge Bañales either disqualify himself or request that the Chief Justice of the Texas
Supreme Court assign another judge to the case. By written order signed on May 27,
2010, the trial court sustained the County’s plea and dismissed appellant’s claims
against the County.2
1 Appellant filed two lawsuits, which were later consolidated, based on the same allegations. A suit against the Nueces County Juvenile Board is a suit against Nueces County. See Flores v. Cameron County, 92 F.3d 258, 269 (5th Cir. 1996) (concluding that a county juvenile board is a county agency). 2 We note that the order states that “[t]his is a final order disposing of all claims against Defendant Nueces County and the Nueces County Juvenile Board.” The order did not, however, sever, dismiss, or otherwise dispose of appellant’s claims against Lindsey. A decree that fails, either expressly or by
2 On June 25, 2010, appellant filed a “Motion for New Trial, Motion to Disqualify
and Declare All Orders in the Matter by Judge J. Manuel Bañales Void, Motion to
Recuse Judge J. Manuel Bañales and Jose Luis Garza, and Motion to Conduct
Evidentiary Hearing.” Also on June 25, 2010, appellant filed a “Motion to Sever” the
May 27, 2010 order from his claims against Lindsey, stating that he sought the
severance to permit an appeal of the May 27, 2010 order. The trial court did not rule on
either motion.3 On August 11, 2010, appellant filed his notice of appeal, which stated
that he was appealing the trial court’s May 27, 2010 order granting the County’s plea to
the jurisdiction.
On September 27, 2010, the County filed a motion to dismiss, asserting that this
Court lacks jurisdiction to consider the appeal because it was not timely filed. On
December 3, 2010, appellant filed a response. In his response, appellant argued that
“[t]he order challenged in this interlocutory appeal may be void” and requested this
Court to “abate this appeal and order the trial court to determine [appellant’s] Motion to
necessary implication, to dispose of all affirmative claims of all parties against all parties is interlocutory in nature. See Cantu Servs., Inc. v. United Freedom Assocs., Inc., 329 S.W.3d 58, 64 (Tex. App.—El Paso 2010, no pet.) (“After the trial court granted UFA’s plea to the jurisdiction, it did not sever, dismiss, or non- suit any of Cantu’s claims against DARS. Thus, we must conclude that the trial court’s order granting UFA’s plea to the jurisdiction did not dispose of all parties. Because the trial court’s order failed to dispose of all parties and all causes of action, it is interlocutory.”). Here, the order granting the County’s plea to the jurisdiction did not dispose of all parties and was therefore interlocutory. See id. Interlocutory appeals of orders on pleas to the jurisdiction are permitted, see TEX. CIV. PRAC. & REM. CODE ANN. 51.014(a)(8) (West 2008), but must be appealed within twenty days of the trial court’s order. See TEX. R. APP. P. 26.1(b). We note that appellant is free to obtain a severance order and appeal the judgment as a final order. See Inliner Ams., Inc. v. Macomb Funding Group, LLC, 244 S.W.3d 427, 431 (Tex. App.— Houston [14th Dist.] 2007, pet. dism’d) (“Finally, having failed to bring an agreed interlocutory appeal in a timely fashion, the parties nevertheless are free to pursue a severance and appeal the judgment as a final order.”). 3 The record does not show that appellant requested a hearing on his motion to sever or his combined motion for new trial/motion to disqualify/motion to recuse, nor does the record show that the trial court ever ruled on these motions.
3 Disqualify . . . .”4 On January 28, 2011, this Court denied the County’s motion to
dismiss.
On February 24, 2011, the County filed a motion to reconsider the denial of its
motion to dismiss, reasserting its argument that this Court lacks jurisdiction because the
appeal was not timely filed. On April 29, 2011, we denied the County’s motion to
reconsider. After reviewing the entire record before us, we now withdraw our January
28, 2011 and April 29, 2011 rulings on the County’s motions.
II. ANALYSIS
Section 51.014(a)(8) of the civil practice and remedies code permits an
interlocutory appeal from an order that grants or denies a plea to the jurisdiction by a
governmental unit. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008).
Appeals from interlocutory orders, when allowed by statute, are accelerated appeals.
TEX. R. APP. P. 28.1. In order to perfect an accelerated appeal of an interlocutory order,
the party is required to file a notice of appeal “within 20 days after the judgment or order
is signed.” Id. at R. 26.1(b). The filing of a motion for new trial, request for findings of
fact and conclusions of law, or any other post-judgment motion, except for a motion for
extension of time filed under Texas Rule of Appellate Procedure 26.3, “will not extend
the time to perfect an accelerated appeal.” Id. at R. 26.3, 28.1(b).
The trial court's order was signed on May 27, 2010. Under the civil practice and
remedies code, the order was subject to an accelerated interlocutory appeal. See TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).
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NUMBER 13-10-00451-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
STEVE SCHWERIN, Appellant,
v.
NUECES COUNTY JUVENILE BOARD, NUECES COUNTY, TEXAS AND MICHAEL L. LINDSAY D/B/A NESTOR CONSULTANTS, INC., Appellees.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion by Justice Garza
Appellant, Steve Schwerin, appeals an order granting appellee Nueces County,
Texas’s plea to the jurisdiction. Specifically, appellant complains of: (1) the failure of
the Presiding Judge of the Fifth Administrative Region to properly respond to his motion for disqualification; (2) inadequate notice of a hearing on a plea to the jurisdiction
decided in favor of appellee; and (3) the failure of the Presiding Judge of the Fifth
Administrative Region and the assigned trial judge to properly respond to his motions
for disqualification and recusal. Because we conclude that the appeal is untimely, we
do not reach these issues and dismiss this case for lack of jurisdiction.
I. BACKGROUND
This appeal arises from a lawsuit that appellant filed against Nueces County, the
Nueces County Juvenile Board (collectively “Nueces County” or “the County”), and
Michael L. Lindsey d/b/a Nestor Consultants, Inc. (“Lindsey”) for claims related to
appellant’s termination as the Chief Juvenile Probation Officer of Nueces County in
2006.1 On August 25, 2009, as Presiding Judge of the Fifth Administrative Judicial
Region, Judge Manuel Bañales assigned Judge Jose Luis Garza to hear the case.
Nueces County filed a plea to the jurisdiction maintaining that it was immune from suit
against all of appellant’s claims. On May 26, 2010, the day before the hearing on the
County’s plea, appellant filed a “Motion to Disqualify and Declare all Orders in this
Matter by Judge J. Manuel Bañales Void.” In the motion, appellant requested that
Judge Bañales either disqualify himself or request that the Chief Justice of the Texas
Supreme Court assign another judge to the case. By written order signed on May 27,
2010, the trial court sustained the County’s plea and dismissed appellant’s claims
against the County.2
1 Appellant filed two lawsuits, which were later consolidated, based on the same allegations. A suit against the Nueces County Juvenile Board is a suit against Nueces County. See Flores v. Cameron County, 92 F.3d 258, 269 (5th Cir. 1996) (concluding that a county juvenile board is a county agency). 2 We note that the order states that “[t]his is a final order disposing of all claims against Defendant Nueces County and the Nueces County Juvenile Board.” The order did not, however, sever, dismiss, or otherwise dispose of appellant’s claims against Lindsey. A decree that fails, either expressly or by
2 On June 25, 2010, appellant filed a “Motion for New Trial, Motion to Disqualify
and Declare All Orders in the Matter by Judge J. Manuel Bañales Void, Motion to
Recuse Judge J. Manuel Bañales and Jose Luis Garza, and Motion to Conduct
Evidentiary Hearing.” Also on June 25, 2010, appellant filed a “Motion to Sever” the
May 27, 2010 order from his claims against Lindsey, stating that he sought the
severance to permit an appeal of the May 27, 2010 order. The trial court did not rule on
either motion.3 On August 11, 2010, appellant filed his notice of appeal, which stated
that he was appealing the trial court’s May 27, 2010 order granting the County’s plea to
the jurisdiction.
On September 27, 2010, the County filed a motion to dismiss, asserting that this
Court lacks jurisdiction to consider the appeal because it was not timely filed. On
December 3, 2010, appellant filed a response. In his response, appellant argued that
“[t]he order challenged in this interlocutory appeal may be void” and requested this
Court to “abate this appeal and order the trial court to determine [appellant’s] Motion to
necessary implication, to dispose of all affirmative claims of all parties against all parties is interlocutory in nature. See Cantu Servs., Inc. v. United Freedom Assocs., Inc., 329 S.W.3d 58, 64 (Tex. App.—El Paso 2010, no pet.) (“After the trial court granted UFA’s plea to the jurisdiction, it did not sever, dismiss, or non- suit any of Cantu’s claims against DARS. Thus, we must conclude that the trial court’s order granting UFA’s plea to the jurisdiction did not dispose of all parties. Because the trial court’s order failed to dispose of all parties and all causes of action, it is interlocutory.”). Here, the order granting the County’s plea to the jurisdiction did not dispose of all parties and was therefore interlocutory. See id. Interlocutory appeals of orders on pleas to the jurisdiction are permitted, see TEX. CIV. PRAC. & REM. CODE ANN. 51.014(a)(8) (West 2008), but must be appealed within twenty days of the trial court’s order. See TEX. R. APP. P. 26.1(b). We note that appellant is free to obtain a severance order and appeal the judgment as a final order. See Inliner Ams., Inc. v. Macomb Funding Group, LLC, 244 S.W.3d 427, 431 (Tex. App.— Houston [14th Dist.] 2007, pet. dism’d) (“Finally, having failed to bring an agreed interlocutory appeal in a timely fashion, the parties nevertheless are free to pursue a severance and appeal the judgment as a final order.”). 3 The record does not show that appellant requested a hearing on his motion to sever or his combined motion for new trial/motion to disqualify/motion to recuse, nor does the record show that the trial court ever ruled on these motions.
3 Disqualify . . . .”4 On January 28, 2011, this Court denied the County’s motion to
dismiss.
On February 24, 2011, the County filed a motion to reconsider the denial of its
motion to dismiss, reasserting its argument that this Court lacks jurisdiction because the
appeal was not timely filed. On April 29, 2011, we denied the County’s motion to
reconsider. After reviewing the entire record before us, we now withdraw our January
28, 2011 and April 29, 2011 rulings on the County’s motions.
II. ANALYSIS
Section 51.014(a)(8) of the civil practice and remedies code permits an
interlocutory appeal from an order that grants or denies a plea to the jurisdiction by a
governmental unit. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008).
Appeals from interlocutory orders, when allowed by statute, are accelerated appeals.
TEX. R. APP. P. 28.1. In order to perfect an accelerated appeal of an interlocutory order,
the party is required to file a notice of appeal “within 20 days after the judgment or order
is signed.” Id. at R. 26.1(b). The filing of a motion for new trial, request for findings of
fact and conclusions of law, or any other post-judgment motion, except for a motion for
extension of time filed under Texas Rule of Appellate Procedure 26.3, “will not extend
the time to perfect an accelerated appeal.” Id. at R. 26.3, 28.1(b).
The trial court's order was signed on May 27, 2010. Under the civil practice and
remedies code, the order was subject to an accelerated interlocutory appeal. See TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). Accordingly, appellant was required to file
his notice of accelerated appeal—which would include his complaint that the trial court’s
4 Appellant argued that the May 27, 2010 order is “void” because as a member of the Nueces County Juvenile Board, Judge Banales was “constitutionally disqualified” and had “no authority” to assign a trial judge to hear the case.
4 order is “void”—within twenty days of the trial court's May 27, 2010 order. The record
does not reflect that appellant filed a motion for extension of time under Texas Rule of
Appellate Procedure 26.3. See TEX. R. APP. P. 26.3; see also Houser v. McElveen, 243
S.W.3d 646, 646–47 (Tex. 2008) (stating that a notice of appeal should be considered
timely if filed within fifteen days after the filing deadline and accompanied by a motion
for extension of time with a reasonable explanation for the delay). In addition,
appellant’s motion for new trial does not extend the time to file the notice of appeal in an
accelerated interlocutory appeal. See TEX. R. APP. P. 28.1(b); In re K.A.F., 160 S.W.3d
923, 927 (Tex. 2005) (“[I]n an accelerated appeal, absent a rule 26.3 motion, the
deadline for filing a notice of appeal is strictly set at twenty days after the judgment is
signed, with no exceptions, and filing a rule 26.1(a) motion for new trial, motion to
modify the judgment, motion to reinstate, or request for findings of fact and conclusions
of law will not extend that deadline.”).
We are to construe the rules of appellate procedure reasonably and liberally so
that the right to appeal is not lost by imposing requirements not absolutely necessary to
effectuate the purpose of a rule. See In re R.D., 304 S.W.3d 368, 370 (Tex. 2010)
(quoting Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997)). Nevertheless, we
are prohibited from enlarging the scope of our jurisdiction by enlarging the time for
perfecting an appeal in a civil case in a manner not provided for by rule. See TEX. R.
APP. P. 2; In re T.W., 89 S.W.3d 641, 642 (Tex. App.—Amarillo 2002, no pet.) (op. on
reh’g).
III. CONCLUSION
Because this appeal is untimely, we conclude that we lack jurisdiction. See In re
5 K.A.F., 160 S.W.3d at 928. Accordingly, we withdraw our earlier denial of the County’s
September 27, 2010 motion to dismiss appellant’s appeal, we withdraw our earlier
denial of the County’s February 24, 2011, motion to reconsider the denial of the motion
to dismiss, GRANT the County’s motion to dismiss, and DISMISS the appeal for want of
jurisdiction. See TEX. R. APP. P. 42.3(a). All other pending motions are dismissed as
moot.
DORI CONTRERAS GARZA Justice
Delivered and filed the 31st day of May, 2012.