Terrence Hazel v. Carol Vance, Chairman, Texas Board of Criminal Justice And James Collins, in His Official Capacity as Executive Director of the Texas Department of Criminal Justice

• Court: Court of Appeals of Texas
• Decided: January 31, 1996
• Docket: 03-95-00600-CV
• Status: Published

Opinion

Hazel v. Vance

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00600-CV

Terrence Hazel, Appellant

v.

Carol Vance, Chairman, Texas Board of Criminal Justice; and James Collins,

in His Official Capacity as Executive Director of the Texas Department

of Criminal Justice, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. 94-05072, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

PER CURIAM

Appellant Terrence Hazel seeks to appeal the trial court's judgment in his suit against appellees Carol Vance, Chairman of the Texas Board of Criminal Justice, and James Collins, in his official capacity as Executive Director of the Texas Department of Criminal Justice. After an initial review of the transcript, the Clerk of this Court wrote to inform the parties that the judgment did not appear to be final and that, in any event, the appeal was not timely perfected. See Tex. R. App. P. 56(a). In response, Hazel moves this Court to deem his appeal timely. We will dismiss the appeal for want of jurisdiction.

In his original petition, Hazel sought a writ of mandamus against both Vance and Collins. Collins answered and moved the trial court to dismiss the cause against him for want of prosecution. The order from which Hazel appeals grants Collins' motion to dismiss the cause as to him. Vance, although served with citation, never answered Hazel's petition. No judgment appears in the transcript disposing of Hazel's claims against Vance.

With exceptions not applicable here, an appellate court has jurisdiction only over appeals from judgments disposing of all claims and all parties before the trial court. Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (West 1986); North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). Hazel's petition naming Vance as a defendant and the execution of service on him invoked the court's personal jurisdiction over Vance and made him a party to Hazel's suit. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985); In re E. L. P., 636 S.W.2d 579, 581 (Tex. App.--San Antonio 1982, no writ); cf. Tex. R. Civ. P. 124; Mabry v. Lee, 319 S.W.2d 125, 126 (Tex. Civ. App.--Beaumont 1958, writ ref'd) (person who was named a defendant, but was not served and did not answer never became a party to the suit). The trial court's jurisdiction of the cause has not been concluded by either a judgment disposing of the claims against Vance or an order severing them from the suit. See Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994). Because the order Hazel appeals does not dispose of all issues and parties, the order is interlocutory and not appealable. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990).

Even if the order were final and appealable, the record does not show that Hazel timely perfected his appeal. Hazel had thirty days from the date the judgment was signed, or until September 20, 1995, to perfect an appeal. Tex. R. App. P. 41(a)(1). His affidavit of inability was filed by the District Clerk one day late, on September 21. A letter in the transcript from the Clerk of this Court indicates that Hazel's affidavit of inability arrived at this Court on September 18 and was forwarded to the Travis County District Clerk's office. Hazel affirms in his motion to deem the appeal timely that he inadvertently mailed his affidavit of inability to the Clerk of this Court rather than to the Clerk of the District Court.

Hazel was required to timely file his perfecting instrument with the Clerk of the District Court. See Tex. R. App. P. 41(a). Filing a perfecting instrument in the appellate court does not meet this requirement. Alvarado v. State, 656 S.W.2d 611, 612 (Tex. App.--San Antonio 1983, no writ). Because Hazel failed to timely file his affidavit of inability, this Court lacks jurisdiction over the appeal. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978).

Further, Hazel's late-filed affidavit is not saved by the "mailbox rule," which requires that documents relating to taking an appeal be sent in a properly addressed envelope to the proper clerk. Tex. R. App. P. 4(b). Regardless of when Hazel sent his affidavit of inability, he has not shown that he mailed it to the proper clerk.

For the reasons discussed above, this Court lacks jurisdiction over Hazel's appeal. We therefore overrule Hazel's motion to deem the appeal timely and dismiss his motion to order appellees to permit his use of the prison law library. We dismiss the appeal for want of jurisdiction. Tex. R. App. P. 60(a)(2).

Before Chief Justice Carroll, Justices Jones and B. A. Smith

Dismissed for Want of Jurisdiction

Filed: January 31, 1996

Do Not Publish