Sterling Truck Corp. and Ford Motor Co. vs. TxDOT

Having determined to remand this cause based on the effect of the error of law regarding the determination that Ford had good cause to terminate Metro's franchise, we will not review appellants' remaining issues on appeal regarding the support for the findings of violations and the assessment of a civil penalty. Although Ford requests that we reject the Board's holdings supporting the assessment of the civil penalty and render judgment in Ford's favor, we are not authorized in this type of case to render a judgment that we believe the agency should have rendered if, by doing so, we would usurp the agency's authority. See Tex. Gov't Code Ann. § 2001.174; Butnaru, 157 S.W.3d at 149; Pantera, 150 S.W.3d at 474 n.9; GTE-SW, 833 S.W.2d at 175; Consumers Water, 774 S.W.2d at 722; see also Marrs, 177 S.W.2d at 950. On the record presented, we believe that rendering judgment in favor of Ford would be an unwarranted intrusion on the agency's authority. We need not consider the remaining issues because their resolution would not alter our disposition of this cause. See Tex. R. App. P. 47.1.
We reverse the Board's order assessing civil penalties against Ford and Sterling in this cause and remand the cause to the Director of the Motor Vehicle Division of the Texas Department of Transportation for reconsideration of this matter in light of a correct application of this Court's holdings in Metro I and further proceedings consistent with this opinion.

Sterling Truck Corp and Ford Motor Co. v. Motor Vehicle Board (Tex.App.- Austin, 2008)( No.
Sterling Truck Corporation and Ford Motor Company v. Motor Vehicle Board of the Texas Department of Transportation and Metro Ford Truck Sales, Inc.--Appeal from of County

Freightliner Corp. v. Motor Vehicle Board of Texas (TxDoT)

Freightliner Corporation and Ford Motor Company v. Motor Vehicle Board of the Texas Department of Transportation and Metro Ford Truck Sales, Inc., No. (Tex.App.- Austin, May 1, 2008) (May 1, 2008) () (reversed and remanded) (Before Justices Patterson, Pemberton and Waldrop)
Freightliner Corporation and Ford Motor Company v. Motor Vehicle Board of the Texas Department of Transportation and Metro Ford Truck Sales, Inc.--Appeal from of County

O P I N I O N

In this direct appeal, we consider whether an agency can, on remand after courts have considered and affirmed the agency's decision in part, revisit an issue affirmed by the courts and reverse the original result based on the same record. Based on the procedural history of this case, we conclude that the Motor Vehicle Board of the Texas Department of Transportation did not have the power on remand to revisit its original determination that Ford Motor Company had good cause to terminate Metro Ford Truck Sales, Inc.'s truck dealer's franchise. We reverse the Board's order entered after remand in which the Board found that Ford did not have good cause to terminate Metro's franchise. We remand for any necessary proceedings that follow the determination that a manufacturer has good cause to terminate its truck dealer's franchise.
* * *
Our conclusion that the original good cause determination was not remanded obviates our consideration of whether substantial evidence supports the finding on remand of no good cause for termination. The Board argues that substantial evidence can support opposing factual findings based on the same record. While theoretically correct, that contention is immaterial because the good cause determination was not properly before the Board on remand. We need not review the sufficiency of the evidence supporting the unauthorized revised finding.
We cannot, however, render judgment terminating Metro's dealer agreement and ordering the winding up of the relationship by a date certain as Ford urges. Although courts are empowered to affirm, reverse, or remand agency decisions, we do not find a power in this type of situation to render a decision that the agency should have rendered. See Tex. Gov't Code Ann. § 2001.174; Pantera, 150 S.W.3d at 474 n.9; GTE-SW, 833 S.W.2d at 175; Consumers Water, Inc. v. Public Util. Comm'n, 774 S.W.2d 719, 722 (Tex. App.--Austin 1989, no writ); see also Marrs v. Railroad Comm'n, 177 S.W.2d 941, 950 (Tex. 1944). Under these circumstances, we cannot render judgment terminating the dealer agreement or dictating the pace of the windup of the relationship.
Instead, we must remand this cause to the Director of the Motor Vehicle Division of the Texas Department of Transportation (7) to conduct the proceedings that should have followed our previous remand. Because this Court by its decision in 2000 affirmed and did not remand the Board's good cause determination for further consideration, we conclude that the Board exceeded its power and committed an error of law by revisiting and reversing that determination. That error affected the substantial rights of Ford and Freightliner by altering the fundamental finding that Ford had good cause to terminate Metro's franchise. See generally Tex. Gov't Code Ann. § 2001.174. Accordingly, we reverse the Board's Final Order After Remand signed February 3, 2005, because it adopts Finding of Fact No. 49 and Conclusion of Law No. 5, both of which concern the unauthorized reconsideration and rejection of the affirmed good cause determination. We reverse the entire order because the remaining actions it directs flow from the improperly revised good cause determination. We remand the cause to the Director for further proceedings established by statute and regulation to follow the Board's previously affirmed determination that Ford had good cause to terminate the franchise in question.

Ford Motor Co. vs. TxDoT (Tex.App.- Austin 2008)

Austin Court of Appeals reverses the Board's order assessing a fine against Ford in this cause and remands the cause to the Director of the Motor Vehicle Division of the Texas Department of Transportation for reconsideration in light of a correct application of the Court's holdings in Metro I and further proceedings consistent with its opinion.

Ford Motor Company v. Motor Vehicle Board of the Texas Department of Transportation and Metro Ford Truck Sales, Inc., No. (Tex. App. - Austin, May 1, 2008)() (Before Justices Patterson, Pemberton and Waldrop)
Ford Motor Company v. Motor Vehicle Board of the Texas Department of Transportation and Metro Ford Truck Sales, Inc.--Appeal from of County

Excerpt from opinion:

Ford Motor Company appeals from the order by the Motor Vehicle Board of the Texas Department of Transportation fining Ford $10,000 for improperly resisting the transfer of the Ford truck sales franchise assigned to Metro Ford Truck Sales, Inc. We conclude that the Board's order must be reversed because of the Board's failure to give proper effect to a previous decision in a related case by this Court. Accordingly, we reverse the Board's order and remand this cause for further proceedings.

This cause is part of a long-running dispute between Ford and Metro, a Ford franchisee. (1) In 1995, Ford attempted to terminate Metro's franchise. Metro protested, prompting a proceeding before the Board to determine whether Ford had good cause to terminate the franchise (Metro I). See Tex. Occ. Code Ann. § 2301.453 (West 2004). That protest triggered entry of a statutory stay that prevented the parties from committing any act or omission that would affect a legal right, duty, or privilege of any party before the Board. Id. § 2301.803 (West 2004). In 1998, the Board found that Ford had good cause to terminate the franchise, but imposed conditions on the termination--including that Ford allow Metro to sell the franchise. The district court affirmed the good cause finding, reversed the imposition of conditions on the termination as unlawful, and remanded for further proceedings. This Court affirmed the district court's judgment. Ford Motor Co. v. Motor Vehicle Bd., 21 S.W.3d 744, 748-54 (Tex. App.--Austin 2000, pet. denied). The supreme court denied review on April 5, 2001.

In the Matter of R.M, No. (Tex.App.- Austin, May , 2008)
) (Before Chief Justice Law, Justices Puryear and Waldrop)
(juvenile case) (affirmed)
Appeal from 98th District Court of Travis County

R.M., a juvenile, was adjudicated delinquent for possession of less than one gram of cocaine and, in a separate disposition order, was committed to the Texas Youth Commission for an indeterminate period of time. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007). On appeal, R.M. contends that the trial court abused its discretion in committing him to TYC. We affirm the trial court's disposition order.
A trial court may not commit a juvenile to TYC unless it finds that commitment is in the child's best interest, all reasonable efforts were taken to avoid the need to remove the child from his home, and the child could not get the care, support, and supervision he needs to meet probation conditions in his home. Id. § 54.04(i)(1); In re C.C., 13 S.W.3d 854, 858 (Tex. App.--Austin 2000, no pet.) (op. on reh'g). A juvenile court has broad discretion in determining the suitable disposition of a juvenile who has engaged in delinquent conduct. In re A.I., 82 S.W.3d 377, 379 (Tex. App.--Austin 2002, pet. denied). In reviewing the court's decision on disposition, we ask whether the court acted in an unreasonable or arbitrary manner. Id. at 379-80. A trial court does not abuse its discretion if some substantive and probative evidence supports its decision. In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.--Fort Worth 2002, no pet.). Legal and factual sufficiency may be relevant in assessing the trial court's exercise of its discretion, and we review evidentiary sufficiency under the standards applied in criminal cases. Id. at 702-04; see In re C.C., 13 S.W.3d at 858-59.
* * *
The evidence supports the trial court's observation that R.M. has a pattern of temporarily improving his behavior when faced with serious consequences, only to slip back into trouble. He was extremely disruptive at school, even though he was only on campus for a few hours a day, and in the spring of 2005, he stopped working despite being enrolled in a work-study program. R.M. was taken into custody six times in about five months time, from early March 2005 until the subject offense in early August, he had been recommended for the Job Corps or a GED program because of his poor performance in school, and the department believed his mother was inconsistent and tended to minimize R.M.'s problems. When released on furlough while in custody due to this charge, R.M. was involved in two different altercations. The court believed that R.M. needed more intensive supervision to give him support and to help him learn to control himself and made the findings required by section 54.04(i)(1) of the family code. When viewed in the light most favorable to the court's findings, the evidence is sufficient to show that TYC commitment is in R.M.'s best interest, that the department made all reasonable efforts to avoid removing him from his home, and that he cannot receive in his home the support, care, and supervision he needs. See In re C.C., 13 S.W.3d at 858. The same is true when all the evidence is viewed in a neutral light. See id. at 859. Although R.M. has shown that he is able to control his behavior when faced with serious consequences, he seems to slip back into misbehavior soon after. He and his family made arrangements for a full-day work program that would put him on track for graduation the following spring, but he had been enrolled in a similar program in the spring of 2005 and did not complete those requirements. We cannot hold that the trial court abused its discretion in determining that R.M. would be best served by being committed to TYC custody. See In re A.I., 82 S.W.3d at 379-80. We affirm the trial court's order of disposition.

Lerma v. ERS (Tex.App.- Austin 2008)

Frances E. Lerma v. Employees Retirement System of Texas, No. (Tex.App. - Austin , May 1, 2008)( )(sicko law, disability denial affirmed, workplace safety, injury) (Before Justices Patterson, Pemberton and Waldrop)
Appeal from 345th District Court of Travis County

M E M O R A N D U M O P I N I O N

Appellant Frances E. Lerma, proceeding pro se, appeals the district court's order affirming a final order by the Board of Trustees for the Employees Retirement System of Texas denying her application for occupational disability benefits. In four points of error, Lerma contends that (1) the Board applied a different legal standard regarding the cause of Lerma's injury than it applied in two previous cases; (2) the Board's interpretation of the statutory definition of occupational disability is inconsistent with the plain language of the statute; (3) the Board engaged in ad hoc rulemaking; and (4) the Board's order is not supported by substantial evidence. We affirm the district court's order.
Lerma worked as a child support officer for the Office of the Attorney General. Her primary job duty was to enforce the collection of child support payments from non-custodial parents. In April 2002, Lerma was meeting with a non-custodial parent when the parent became extremely angry and, according to Lerma, exhibited threatening conduct. After this incident, Lerma continued to work as a child support officer until July 2002, when she was diagnosed with a personality disorder and dismissed from her employment.
After her dismissal, Lerma applied for occupational disability benefits from the Employees Retirement System, which was created by the legislature for the purpose of providing a retirement system for aged and incapacitated state employees. See Act of May 27, 1947, 50th Leg., R.S., ch. 352, 1947 Tex. Gen. Laws 697, 697 (statement of purpose). She claimed that the April 4, 2002 incident with the angry non-custodial parent was the primary cause of her diagnosis of personality disorder. On February 20, 2004, ERS sent Lerma a letter denying her claim for benefits on the ground that her disability did not meet the statutory definition of an occupational disability in section 811.001(12) of the government code. (1) In the letter, ERS explained:
The Medical Board has determined that the primary cause of your incapacity is recurrent, severe, major depression and anxiety disorder that began as early as 1988. You attribute your major depression and anxiety to an increased level of stress on the job that you believe began in January 2000. However, the medical evidence indicates that these are chronic conditions that existed prior to your employment as a Child Support Officer III with the Office of the Attorney General, and were not caused by the job duties.
ERS also stated that Lerma failed to seek reasonable accommodation of her condition at work and that the medical evidence indicated that Lerma should be able to perform her job duties or comparable work.
Lerma appealed ERS's denial of her application for benefits and, after an administrative hearing, the administrative law judge (ALJ) issued a proposal for decision recommending that Lerma's appeal be denied. On April 20, 2005, the ERS Board of Trustees adopted the ALJ's proposal for decision, including the findings of fact and conclusions of law, as its own. Lerma sought judicial review of the Board's decision. On May 5, 2006, the district court held a hearing and issued an order affirming the Board's final order denying Lerma's application for occupational disability benefits.
In her first point of error, Lerma contends that the Board applied a different legal standard regarding the cause of her injury than it applied in two previous cases. Those previous cases concerned two former state employees, Mary L. Dean and Francisca G. Link, who applied for occupational disability benefits with ERS in 1994 and 1998, respectively. (2) ERS denied Dean's and Link's application for benefits, and they both appealed. The Board granted both appeals, finding that both individuals were entitled to occupational disability benefits and that their claims were not barred by preexisting conditions caused solely by natural aging processes.
We review the Board's findings under the substantial evidence rule. Tex. Gov't Code Ann.

MRC Finance Co. v. Texas Comptroller Carole Keeton Strayhorn

This is an appeal from a summary judgment in a tax refund suit to recover motor vehicle sales tax with interest. The issue presented is whether a company that purchased installment-sales contracts from retail motor vehicle dealers could avail itself of the bad debt refund statute after the obligors defaulted. We will affirm the district court's judgment.

MFC Finance Company of Texas v. Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General of the State of Texas, No. (Tex. App.- Austin, May 1, 2008) ( ) (affirmed) (Before Justices Patterson, Pemberton and Waldrop)
Appeal from 345th District Court of Travis County

Adoption went awry - no affidavit of relinquishment

Court of appeals sends case back to the trial court to substantiate reasons for SAPCR order.

ABATED: (Before Justices Patterson, Puryear and Henson)

In the Interest of E. N. C.--Appeal from 169th District Court of Bell County

The absence of findings of fact and conclusions of law in the judgment prevents us from conducting a meaningful review of the district court's decision. Accordingly, we abate the appeal and send it back to the district court with instructions that the district court enter findings and conclusions supporting its order and file the requested findings and conclusions with this Court within 30 days of the date on this order.

No reasoned opinion: Justice Henson delivers one-liner

... indeed not much of an opinion at all.

MOTION OR WRIT DENIED: (Before Justices Patterson, Puryear and Henson)

In re Bobby Dale Barina--Appeal from 146th District Court of Bell County

M E M O R A N D U M O P I N I O N

The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).

Appellate Attorney faces contempt - Where is the brief?

Myers v. The State of Texas, No. (Tex.App.- Austin, May 1, 2008)() (Before Chief Justice Law, Justices Pemberton and Waldrop)John Paul Myers v. The State of Texas--Appeal from 33rd District Court of Llano County
ORDERED: John Paul Myers v. The State of Texas--Appeal from 33rd District Court of Llano County

O R D E R T O S H O W C A U S E

PER CURIAM

This is a contempt proceeding ancillary to John Paul Myers's appeal from a judgment of conviction. The subject of this proceeding is Timothy W. Inman, appellant's counsel.

The record in this appeal was filed in December 2006. While this appeal has been pending, three different attorneys have been appellant's counsel of record. Inman first appeared as counsel in this Court on May 8, 2007. The deadline for filing a brief has been extended three times.
On December 12, 2007, this Court abated the appeal for a hearing in the trial court. See Tex. R. App. P. 38.8(b). At that hearing, held on January 10, 2008, Inman told the trial court that he had completed his research and promised to file a brief within thirty days. A brief was not filed within thirty days. By written order of this Court dated March 11, 2008, appellant's counsel was ordered to tender a brief on appellant's behalf no later than April 4, 2008. The order expressly provided that, if counsel failed to comply with the order, he would be subject to being ordered to show cause why he should not be held in contempt.

As of the date of this order, Inman has not filed a brief. Therefore, it is ordered that Timothy W. Inman shall appear in person before this Court on the 21st day of May, 2008, at 8:30 a.m. in the courtroom of this Court, located in the Price Daniel, Sr. Building, 209 West 14th Street, City of Austin, Travis County, Texas, then and there to show cause why he should not be held in contempt and sanctions imposed for his failure to obey the March 11, 2008, order of this Court. This order to show cause will be withdrawn and Inman will be relieved of his obligation to appear before this Court as above ordered if the Clerk of this Court receives appellant's brief by May 20, 2008.

It is ordered May 1, 2008.
Before Chief Justice Law, Justices Pemberton and Waldrop

Collateral Estoppel in Criminal Case

State prevails in criminal appeal

The State of Texas v. Ryan Getman, No. (Tex.App.- Austin, May 1, 2008) ()
The State of Texas v. Ryan Getman
Appeal from 299th District Court of Travis County

COLLATERAL ESTOPPEL

The collateral estoppel rule "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe, 397 U.S. at 443. In Ashe, the United States Supreme Court held that the Double Jeopardy Clause incorporates collateral estoppel as a constitutional requirement. Id. at 445.

The defendant in Ashe urged that his acquittal in a prosecution for robbing a participant in a poker game barred his subsequent prosecution for robbing another participant in the game. Id. at 339. After cautioning that criminal collateral estoppel should not be applied in a "hypertechnical" manner, the Court wrote:

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.
* * *

The court of criminal appeals has held that a probation revocation hearing can give rise to collateral estoppel. See Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986). However, for collateral estoppel to apply, (1) there must be a fact-finding by the trial court at the probation revocation proceeding that illustrates the basis for the court's decision; Jaime v. State, 81 S.W.3d 920, 926 (Tex. App.--El Paso 2002, pet. ref'd); Wafer v. State, 58 S.W.3d 138, 141 (Tex. App.--Amarillo 2001, no pet.); and (2) that fact-finding must be adverse to the State on a fact elemental to the subsequent prosecution. Id. at 141.

* * *
CONCLUSION

The district court below erred by concluding that the Nueces County district court, at the hearing on the State's motion to revoke Getman's probation, decided an issue of ultimate fact that would preclude the State from trying Getman in Travis County for the aggravated assault alleged in the instant indictment. The court's order is reversed and the cause is remanded for further proceedings consistent with this opinion.

March 27, 2008
Colton Aaron Pitonyak v. The State of Texas--Appeal from 147th District Court of Travis CountyAFFIRMED: (Before Justices Patterson, Puryear and Henson)

Colton Aaron Pitonyak v. The State of Texas--Appeal from 147th District Court of Travis County

ABATED: (Before Justices Patterson, Puryear and Henson)
(March 27, 2008)
Samuel Jurado v. The State of Texas--Appeal from 264th District Court of Bell CountyABATED: (Before Justices Patterson, Puryear and Henson)

Samuel Jurado v. The State of Texas--Appeal from 264th District Court of Bell County

March 27, 2008 -
Claude Wayne Chadwick v. The State of Texas--Appeal from 51st District Court of Tom Green CountyORDERED: (Before Justices Patterson, Puryear and Henson)

Claude Wayne Chadwick v. The State of Texas--Appeal from 51st District Court of Tom Green County

March 26, 2008 -
Claude Wayne Chadwick v. The State of Texas--Appeal from 51st District Court of Tom Green CountyMOTION OR WRIT GRANTED: (Before Justices Patterson, Puryear and Henson)

Claude Wayne Chadwick v. The State of Texas--Appeal from 51st District Court of Tom Green County

U.S. Structural Concrete, Inc. v. Pro Forming & Shoring, LLC--Appeal from 53rd District Court of Travis CountyDISMISSED ON APPELLANT'S MOTION: (Before Justices Patterson, Puryear and Henson)
(March 26, 2008)
U.S. Structural Concrete, Inc. v. Pro Forming & Shoring, LLC--Appeal from 53rd District Court of Travis County

In re Robert F. Brown III--Appeal from 277th District Court of Williamson CountyMOTION OR WRIT DENIED: (Before Chief Justice Law, Justices Pemberton and Waldrop) (March. 26, 2008)

In re Robert F. Brown III--Appeal from 277th District Court of Williamson County

Thomas Borgstedte, M.D., and excellerx, Inc. a/k/a Hospice Pharmacia v. Debra Leigh, Kelvin Leonard and Thea King, Individually and on Behalf of the Estate of Bobby Leonard, Deceased--Appeal from 155th District Court of Fayette CountyDISMISSED ON JOINT MOTION: (Before Chief Justice Law, Justices Pemberton and Waldrop)
(March 26, 2008)
Thomas Borgstedte, M.D., and excellerx, Inc. a/k/a Hospice Pharmacia v. Debra Leigh, Kelvin Leonard and Thea King, Individually and on Behalf of the Estate of Bobby Leonard, Deceased--Appeal from 155th District Court of Fayette County

March 26, 2008 - Church Builders, Inc.; Richard A. Humphrey; Randy Beckett and Amy D. Humphrey v. Kyle United Methodist Church--Appeal from 428th District Court of Hays County
DISMISSED ON APPELLANT'S MOTION: (Before Justices Patterson, Puryear and Henson)

Church Builders, Inc.; Richard A. Humphrey; Randy Beckett and Amy D. Humphrey v. Kyle United Methodist Church--Appeal from 428th District Court of Hays County

2008-03-21-Criminal Causes Decided:
Steven Ray Cline v. The State of Texas--Appeal from 33rd District Court of Burnet CountyCriminal Causes Decided:
AFFIRMED: (Before Justices Patterson, Puryear and Henson)

Steven Ray Cline v. The State of Texas--Appeal from 33rd District Court of Burnet County

TDI vs. Insurance Council of Texas

Texas Department of Insurance, Division of Workers' Compensation v. Insurance Council of Texas, Texas Mutual Insurance Company, Texas Property and Casualty Insurance Guaranty Association, and Envoy Medical Systems, Inc., NO. (Tex. App. -Mar. 21, 2008)( )(affirmed)(we conclude that the Rule is invalid because it is not in harmony with the relevant governing statutes, which allow for judicial review of medical necessity disputes) (Before Justices Patterson, Puryear and Smith)

Full style: Texas Department of Insurance, Division of Workers' Compensation v. Insurance Council of Texas, Texas Mutual Insurance Company, Texas Property and Casualty Insurance Guaranty Association, and Envoy Medical Systems, Inc.--Appeal from 345th District Court of Travis County

M E M O R A N D U M O P I N I O N
In response to concerns regarding the expense of review procedures utilized in workers' compensation claims concerning the necessity of medical treatment, the Texas Department of Insurance, Division of Workers' Compensation (1)
promulgated a rule creating a less expensive alternative review procedure. See 28 Tex. Admin. Code § 133.309 (2007) (the "Rule"). In 2004, the Insurance Council of Texas ("Council") filed a declaratory judgment action challenging the validity of the Rule. See Tex. Gov't Code Ann. § 2001.038 (West 2000). Texas Mutual Insurance Company ("Texas Mutual"), Texas Property and Casualty Insurance Guaranty Association ("Texas Property"), and Envoy Medical Systems, L.P., ("Envoy") all intervened and supported the Council's contention that the Rule was invalid. (2) The Division and the Joint Appellees filed cross motions for summary judgment, and the district court granted the Joint Appellees' motion and denied the Division's motion. We will affirm the judgment of the district court.

March 21, 2008 - Cliff Burke v. Dana Sharp--Appeal from 395th District Court of Williamson CountyABATED: (Before Justices Patterson, Puryear and Henson)
Cliff Burke v. Dana Sharp--Appeal from 395th District Court of Williamson County

Claimspitting: In re Stonebridge Life Ins. Co.

In re Stonebridge Life Insurance Company, No. (Tex.App.- Austin, Mar. 21, 2008)( )(claim splitting, multiple suits, mandamus granted) (Before Chief Justice Law, Justices Pemberton and Waldrop)

In re Stonebridge Life Insurance Company--Appeal from 207th District Court of Comal County

Stonebridge Life Insurance Company seeks a writ of mandamus directing the district court to vacate its order denying its motion to consolidate eleven lawsuits filed against it by real party in interest Lawrence A. Stoepler and order the district court to grant its motion. Under the unique circumstances presented here, we conditionally grant the requested relief.

We must conclude on this record that Stoepler's pursuit of this his claim as eleven separate suits amounts to claim-splitting and is a violation of the single action rule. The district court's refusal to consolidate Stoepler's eleven lawsuits therefore constitutes an abuse of discretion. We conditionally grant Stonebridge's petition for writ of mandamus and direct the district court to vacate its order denying Stonebridge's motion to consolidate and consolidate the eleven suits in question. The writ will issue only if the district court fails to take appropriate action in accordance with this opinion. We express no opinion regarding implications of this proceeding, if any, for removal or concerning the ultimate merits of the parties' claims or defenses.

March 20,2 008 - Cassandra Joyce Williams v. The State of Texas--Appeal from 33rd District Court of Burnet CountyAFFIRMED: (Before Justices Patterson, Puryear and Henson)

Cassandra Joyce Williams v. The State of Texas--Appeal from 33rd District Court of Burnet County

March 21, 2008 - Juan Andino Figueroa a/k/a Juan Andino v. The State of Texas--Appeal from 27th District Court of Bell CountyMODIFIED AND, AS MODIFIED, AFFIRMED: (Before Justices Patterson, Pemberton and Waldrop)

Juan Andino Figueroa a/k/a Juan Andino v. The State of Texas--Appeal from 27th District Court of Bell County

Graves v. Crain, No. (Tex.App.- Austin, Mar. 20, 2008)( )(criminal law issue) (Before Justices Puryear, Waldrop and Henson)

Rickie Lynn Graves v. Christina Melton Crain, Chairman of the Texas Board of Criminal Justice; Gary Johnson, Executive Director, Texas Department of Criminal Justice; Doug Dretke, Director, T.D.C.J. - Institutional Division; David P. Weeks, Chief Prosecutor; et al.
Appeal from 98th District Court of Travis County

In 1998, appellant Rickie Lynn Graves was convicted of possession of a controlled substance while in a correctional facility and was sentenced to fifty years' imprisonment. In 2004, Graves filed a petition seeking a declaratory judgment that the "special prison prosecution unit" through which Graves was prosecuted in 1998 was unconstitutional and that his 1998 conviction was void. (3) Appellees filed a motion to dismiss arguing that Graves's suit was an attack on his final conviction, which is governed by article 11.07 of the code of criminal procedure; limitations had run on Graves's claims; Graves failed to state a claim under 42 U.S.C.A. § 1983 ("section 1983"); appellees were entitled to qualified immunity from any claims under section 1983; appellees were not liable under section 1983 in their official or supervisory capacities; and there was no justiciable issue presented that the trial court had the power to resolve. Graves responded that the legislature did not authorize the special prison prosecution unit to act as it has since its creation and that the unit as operated was a judicial office and thus a violation of the separation of powers doctrine. He asserted that the Texas Constitution delegates the authority to conduct criminal prosecutions to county and district attorneys and that the multi-county jurisdiction exercised by the unit violated those constitutional provisions. Graves stated that he was not challenging his conviction but instead was contesting the legality of the unit's existence and operation. The trial court interpreted appellees' motion to dismiss as a plea to the jurisdiction and granted the motion, dismissing the suit for lack of jurisdiction.

Because Graves sought relief from a final felony conviction from a court that lacked jurisdiction over the issue, (4) the trial court did not err in dismissing the suit for lack of jurisdiction. We affirm the trial court's order of dismissal.

Attempted Appeal of Denial of Recusal Dismissed

Rhett Webster Pease v. Texas Attorney General and Janell Pease, No. (Tex.App.- Mar. 20, 2008)( )(DWOJ, no interlocutory appellate jurisdiction) (Before Justices Patterson, Puryear and Henson)Rhett Webster Pease v. Texas Attorney General and Janell Pease--Appeal from 21st District Court of Lee County

FROM THE DISTRICT COURT OF LEE COUNTY, 21ST JUDICIAL DISTRICT
NO. 12,380, HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

On July 27, 2007, appellant Rhett Webster Pease filed a notice of appeal with this Court, appealing from the alleged failure of the trial judge to recuse himself and the trial court's refusal to consider Pease's motion to disqualify an associate judge. (1) On August 21, 2007, this Court sent a letter to Pease requesting a response explaining why this Court has jurisdiction in this appeal. On September 5, 2007, Pease filed a response. The Attorney General then filed a response to Pease's "Explanation of the Appeal" on March 7, 2008, and Pease filed a further response on March 13, 2008.
In his initial response to this Court, Pease states that he "did not appeal the ruling on a motion to disqualify as no civil law due process has ever been followed in the lower court and no ruling was ever made on the disqualification. . . ." In his subsequent response, he again states that the appeal "has nothing to do" with the denial of a motion to recuse. Despite these statements to the contrary, his notice of appeal only addresses recusal and disqualification.
This Court lacks jurisdiction over an appeal from an interlocutory order unless jurisdiction is specifically provided by statute. See Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). No statute authorizes an interlocutory appeal from a judge's refusal to recuse or from a trial court's failure to consider a motion to disqualify. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2007) (providing for appeal from certain interlocutory orders). Accordingly, we dismiss this appeal for want of jurisdiction.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed for Want of Jurisdiction
Filed: March 20, 2008
1. Pease filed a separate interlocutory appeal from cause number 12,380 in the 21st District Court of Lee County that was dismissed for lack of jurisdiction because the appeal was taken from a non-appealable order for the issuance of a capias. See Pease v. Texas Attorney General, No. 03-07-00704-CV, slip op. at 1 (Tex. App.--Austin Jan. 8, 2008, no pet.) (mem. op.). On February 12, 2008, Pease filed an additional notice of appeal with this Court appealing an order denying change of venue, an order regarding cash bond, and an order for capias. Pease has also initiated a mandamus proceeding.

Jan Patterson Hands Down One-Liner "Opinion"

MOTION OR WRIT DENIED: (Before Justices Patterson, Puryear and Henson)


In re Raymond J. Fierro--Appeal from 22nd District Court of Comal County

ORIGINAL PROCEEDING FROM COMAL COUNTY

M E M O R A N D U M O P I N I O N

The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Filed: March 20, 2008

In re Roy Edward Addicks, Jr. (Tex.App.- Austin, Mar. 20, 2008) ) (Before Chief Justice Law, Justices Patterson and Puryear)

In re Roy Edward Addicks, Jr.--Appeal from 155th District Court of Fayette County

ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
Roy Edward Addicks, Jr., proceeding pro se, has filed a "Motion of Notice of Filing a Writ of Mandamus." (1) Addicks complains that this court has failed to make a written ruling on various motions that he has filed in connection with an underlying appeal, Addicks v. State, No. 03-06-00114-CV, 2007 Tex. App. LEXIS 2612 (Tex. App.--Austin 2007, no pet.) (expunction proceeding). The court, in an opinion on the merits, handed down an opinion in this case on March 21, 2007, and disposed of all motions pending at that time. The mandate issued on July 12, 2007. The motions about which Addicks complains were filed after the mandate issued. By letter, the Court informed Addicks that it had received the motions but no longer had jurisdiction to take action on them. Addicks has received a ruling on all of his motions. We deny Addick's petition for writ of mandamus. See Tex. R. App. P. 52.8(a).
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Patterson and Puryear
Filed: March 20, 2008
1. Addicks did not file the required record. See Tex. R. App. P. 52.7(a).

Bob Pemberton's Million Dollar Bail Dissent

DISSENTING OPINION: (Before Chief Justice Law, Justices Pemberton and Waldrop)

Ex parte Christopher Lee Murray--Appeal from 21st District Court of Bastrop County

D I S S E N T I N G O P I N I O N

Although million-dollar bonds continue to invite appellate court scrutiny, even in 2008, the starting point of our review is the record that the defendant has the burden to develop. On the scant record before us here, I would hold that the district court did not abuse its discretion in concluding that Mr. Murray did not meet his burden of proving excessive bail. Accordingly, I respectfully dissent.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: March 20, 2008
Do Not Publish

How much bail is excessive?

Million-dollar bail - is it constitutional?

March 20, 2008 - REVERSED AND REMANDED: (Before Chief Justice Law, Justices Pemberton and Waldrop)

Ex parte Christopher Lee Murray--Appeal from 21st District Court of Bastrop County
DISSENTING OPINION: (Before Chief Justice Law, Justices Pemberton and Waldrop)


Christopher Lee Murray is confined while awaiting trial on an indictment accusing him of capital murder and injury to a child. Murray applied for a writ of habeas corpus complaining that the bail set in this case, $1,000,000, is excessive. The writ issued, and after a hearing, the district court denied relief. In a single point of error, Murray contends that the bail is unreasonably high and the trial court erred by failing to reduce it. We will reverse and remand the cause to the trial court
.
* * *

The Texas Constitution guarantees that "[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident." Tex. Const. art. I, § 11; see Tex. Code Crim. Proc. Ann. art. 1.07 (West 2005). The State does not claim that the proof is evident in this case. Therefore, Murray is entitled to reasonable bail, that is, bail that is not excessive. U.S. Const. amend VIII; Tex. Const. art. I, § 13; Tex. Code Crim. Proc. Ann. art. 1.09 (West 2005).
Ex parte Christopher Lee Murray--Appeal from 21st District Court of Bastrop County
It is clear from the record that the $1,000,000 bail in this case is beyond Murray's ability to pay. On the other hand, the crime of which Murray is accused is a very serious one, both factually and in regard to the potential punishment. Murray has shown no real ties to the community. Although Murray has no record of convictions for violent crimes, there is evidence that he has assaulted two women, including the mother of the deceased child. Considering the evidence adduced in the light most favorable to the court's ruling, and having measured that ruling against the criteria informing the setting of pretrial bail, we believe that the trial court could reasonably conclude that bail should be higher than the $40,000 to $50,000 sought by Murray, but that the court abused its discretion by maintaining Murray's bail at $1,000,000. Therefore, we sustain Murray's point of error, reverse the district court's order, and remand for further proceedings on the writ of habeas corpus. Upon remand, the trial court shall enter an order setting bail in a reasonable amount consistent with this opinion. Murray may appeal the court's new order in the same manner as he appealed the order now before us.

D I S S E N T I N G O P I N I O N

Although million-dollar bonds continue to invite appellate court scrutiny, even in 2008, the starting point of our review is the record that the defendant has the burden to develop. On the scant record before us here, I would hold that the district court did not abuse its discretion in concluding that Mr. Murray did not meet his burden of proving excessive bail. Accordingly, I respectfully dissent.
__________________________________________
Bob Pemberton, Justice

Granek, MD v. Texas State Board of Medical Examiners

Harold Granek, M.D. v. Texas State Board of Medical Examiners and Donald W. Patrick, M.D.
No. ] No. (Tex. App.- Austin, Mar. 19, 2008)( )(licensing and agency regulatory authority) (Before Justices Patterson, Puryear and Pemberton)
Harold Granek, M.D. v. Texas State Board of Medical Examiners and Donald W. Patrick, M.D.
Appeal from 126th District Court of Travis County

M E M O R A N D U M O P I N I O N

This appeal marks the second time we have had occasion to review the ongoing dispute between appellant Harold Granek, M.D., and appellees the Texas State Board of Medical Examiners and Donald Patrick, M.D. (1) In this instance, Granek appeals from the Board's final order issued February 4, 2005, which extended the suspension of his license to practice medicine, stay of suspension, and probationary period from three to six years. Because we conclude that the Board had authority to pursue enforcement action against Granek, that its order was neither arbitrary nor capricious and was supported by substantial evidence, we affirm the district court's judgment affirming the Board's final order.

DISMISSED ON APPELLANT'S MOTION: (Before Justices Patterson, Puryear and Henson)

Jack Ferrell v. Grissom & Thompson, L.L.P.--Appeal from County Court at Law No. 1 of Travis CountyDISMISSED ON APPELLANT'S MOTION: (Before Justices Patterson, Puryear and Henson)
(Tex.App.- Mar. 19, 2008) () (Before Justices Patterson, Puryear and Henson)

Jack Ferrell v. Grissom & Thompson, L.L.P.--Appeal from County Court at Law No. 1 of Travis County

Mar. 19, 2008 - Dexter Leon Hedspeth Jr. v. The State of Texas--Appeal from 421st District Court of Caldwell CountyAFFIRMED: (Before Justices Patterson, Puryear and Henson)

Dexter Leon Hedspeth Jr. v. The State of Texas--Appeal from 421st District Court of Caldwell County

DWOJ

William Alexander Roper, Jr. v. Reagan, Burrus, Dierksen, Lamon & Bluntzer PLLC, No. (Tex.App.- Austin , Mar. 18, 2008)( )(Before Chief Justice Law, Justices Pemberton and Waldrop) William Alexander Roper, Jr. v. Reagan, Burrus, Dierksen, Lamon & Bluntzer PLLC--Appeal from County Court at Law # 2 of Comal County

On February 13, 2007, Reagan Burrus filed a motion to compel payment of the attorney's fees that the trial court had previously awarded in its March 1, 2006 order. On May 10, the trial court granted the motion. It is from this order that appellant purports to appeal.
Our appellate jurisdiction is limited to final judgments and those limited classes of interlocutory orders over which the legislature has given us jurisdiction. Majeski v. Estate of Majeski, 163 S.W.3d 102, 105 (Tex. App.--Austin 2005, no pet.) (citing Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998)). As Roper acknowledges in his docketing statement, the May 10, 2007 order compelling payment of attorney's fees is interlocutory. See Wagner v. Warnasch, 295 S.W.2d 890, 893 (Tex. 1956) ("[A]n order or decree, made for the purpose of carrying a judgment or decree already entered into effect, is not a final judgment or decree, and cannot be appealed from as such."). Statutes authorizing appeals from interlocutory orders are strictly construed. Art Inst. of Chicago v. Integral Hedging, L.P., 129 S.W.3d 564, 570 (Tex. App.--Dallas 2003, no pet.). In probate proceedings, section 51.014(a) authorizes appeals from an interlocutory order that appoints a receiver or trustee or overrules a motion to vacate an order that appoints a receiver or trustee. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(1), (2) (West 1997 & Supp. 2007). Section 51.014(a) does not authorize an appeal from an interlocutory order compelling payment of previously awarded attorney's fees. See Integral Hedging, L.P., 129 S.W.3d at 573.

In summary, Roper did not timely perfect an appeal from the trial court's March 1, 2006 order and we do not have jurisdiction to consider Roper's appeal from the trial court's May 10, 2007 interlocutory order. Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).

March 18, 2008 - Donald Ray Hutchis v. The State of Texas--Appeal from 331st District Court of Travis County
DISMISSED FOR WANT OF JURISDICTION: (Before Justices Patterson, Puryear and Henson)

Donald Ray Hutchison v. The State of Texas--Appeal from 331st District Court of Travis Countyon v. The State of Texas--Appeal from 331st District Court of Travis County

DWOJ
Kody Malloy Smith v. The State of Texas--Appeal from 264th District Court of Bell County
DISMISSED FOR WANT OF JURISDICTION: (Before Justices Patterson, Puryear and Henson)

Kody Malloy Smith v. The State of Texas--Appeal from 264th District Court of Bell County

March 18, 2008 - Kody Malloy Smith v. The State of Texas--Appeal from 264th District Court of Bell CountyDISMISSED FOR WANT OF JURISDICTION: (Before Justices Patterson, Puryear and Henson)

Kody Malloy Smith v. The State of Texas--Appeal from 264th District Court of Bell County

March 18, 2008 - George Walter Prayer aka George Walter Prayer, Jr. v. The State of Texas--Appeal from 264th District Court of Bell CountyDISMISSED FOR WANT OF JURISDICTION: (Before Chief Justice Law, Justices Pemberton and Waldrop)

George Walter Prayer aka George Walter Prayer, Jr. v. The State of Texas--Appeal from 264th District Court of Bell County

March 18, 2008 - Leonard Unsu Castillo v. The State of Texas--Appeal from 277th District Court of Williamson County
DISMISSED FOR WANT OF JURISDICTION: (Before Justices Patterson, Puryear and Henson)

Leonard Unsu Castillo v. The State of Texas--Appeal from 277th District Court of Williamson County

Texas Orthopaedic Association v. Texas State Board of Podiatric Medical Examiners

What is "foot"? A term in search of a lawerly definition
Texas Orthopaedic Ass'n vs. Texas State Board of Podiatric Medical Examiners, No. (Tex.App.- Austin, Mar, 14, 2008)( ((reversed and remanded) (Before Justices Puryear, Waldrop and Smith)
Texas Orthopaedic Association, Texas Medical Association and Andrew M. Kant, M.D. v. Texas State Board of Podiatric Medical Examiners; Texas Podiatric Medical Association; and Bruce A. Scudday, D.P.M.--Appeal from 345th District Court of Travis County

O P I N I O N

Various statutes over the years have described the practice of podiatry as the treatment of the foot, but the term "foot" has never been statutorily defined. See, e.g., Tex. Occ. Code Ann. § 202.001(a)(4) (West 2004). In 2001, the Texas State Board of Podiatric Medical Examiners (the "Board") promulgated a rule defining the word "foot." See Tex. Occ. Code Ann. § 202.151 (West 2004) (authorizing Board to adopt rules governing practice of podiatry); 22 Tex. Admin. Code § 375.1(2) (2007) (defining foot) (the "Rule"). The Rule included in its definition, among other things, portions of what in layman's terms is called the ankle. In response, the Texas Orthopaedic Association, the Texas Medical Association, and Andrew M. Kant, M.D. ("appellants") sought a declaration that the Rule impermissibly expanded the scope of podiatry. The district court concluded that the Rule was valid and did not exceed the Board's authority. The appellants appeal the judgment of the district court. We will reverse the district court's judgment.

Lucero v. National Western Life Insurance Company, No. (Tex.App.- Austin, Mar. 14, 2008)( ) (Before Justices Patterson, Puryear and Henson)
VACATED AND REMANDED:
Katherine Garcia Lucero, Individually and on Behalf of All Others Similarly Situated v. National Western Life Insurance Company--Appeal from 345th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-00-00704, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The parties to this appeal have filed a joint motion requesting that the cause be remanded to the district court for an agreed dismissal with prejudice, pursuant to a settlement agreement. See Tex. R. App. P. 42.1(a)(2)(B). We set aside the trial court's judgment without regard to the merits and remand the case to the trial court for rendition of judgment in accordance with the parties' agreement.
__________________________________________
Diane Henson, Justice
Before Justices Patterson, Puryear and Henson
Vacated and Remanded
Filed: March 14, 2008

March 14, 2008 Criminal Causes Decided:
ORDERED: (Before Chief Justice Law, Justices Pemberton and Waldrop)

Mark Tillman v. The State of Texas--Appeal from 403rd District Court of Travis CountyCriminal Causes Decided:
ORDERED: (Before Chief Justice Law, Justices Pemberton and Waldrop)

Mark Tillman v. The State of Texas--Appeal from 403rd District Court of Travis County

March 14, 2008 -
Charlies W. Bishop II v. The State of Texas--Appeal from 390th District Court of Travis County
DISMISSED FOR WANT OF JURISDICTION: (Before Justices Patterson, Puryear and Henson)

Charlies W. Bishop II v. The State of Texas--Appeal from 390th District Court of Travis County

National Golf Operating, P.S., L.P. v. Williamson County Appraisal District, No. (Tex.App.- Austin, Mar. 13, 2008)( ) (Before Justices Patterson, Puryear and Pemberton)
AFFIRMED: National Golf Operating, P.S., L.P. v. Williamson County Appraisal District--Appeal from 368th District Court of Williamson County

O P I N I O N

This is an appeal from a dismissal for want of prosecution in a property tax case. Because we cannot conclude from this record that the district court abused its discretion in dismissing the case, we will affirm its judgment of dismissal.

Minnfee v. Simms, DA, No. (Tex.App.- Austin, Mar. 13, 2008)( ) (Before Justices Patterson, Puryear and Henson)Barry Dwayne Minnfee v. Randall C. Simms, District Attorney; and Don Clemmer, Deputy Attorney General--Appeal from 200th District Court of Travis County
AFFIRMED: Barry Dwayne Minnfee v. Randall C. Simms, District Attorney; and Don Clemmer, Deputy Attorney General--Appeal from 200th District Court of Travis County

M E M O R A N D U M O P I N I O N

Barry Dwayne Minnfee, an inmate incarcerated in the Texas Department of Criminal Justice, appeals pro se from a court order dismissing his petition as frivolous and declaring him a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.054, .101-02, 14.003(a)(2) (West 2002). We affirm the trial court's order.

Based upon our review of the record, we cannot conclude that the trial court abused its discretion when it found that appellant was a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054. Appellant was not likely to prevail in the underlying litigation, having failed to adequately assert any cause of action or any basis for obtaining post-conviction DNA forensic testing or demonstrating that he could carry his burden of proof on any of the requirements of the statute. See id. Within the seven-year period preceding defendants' motion to declare appellant a vexatious litigant, appellant had prosecuted in propria persona at least five litigations finally determined adversely against him and determined to be groundless. See id. § 11.054(1). Yet even after several of appellant's suits have been finally determined adversely to appellant, he continues to file additional suits involving the same facts, claims, or controversies previously determined against him. See id. § 11.054(2)(B). Finding no abuse of discretion, we resolve appellant's issue against him.

CONCLUSION

Having overruled appellant's issue, we affirm the trial court's order of dismissal and declaration that appellant is a vexatious litigant.

In re Premier Ambulatory Surgery of Austin, L.L.P. No. (Tex., App. - Austin, Mar. 13, 2008)( ) (Before Justices Patterson, Puryear and Henson)
In re Premier Ambulatory Surgery of Austin, L.L.P.
Appeal from 200th District Court of Travis County

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

M E M O R A N D U M O P I N I O N

On January 8, 2008, relator Premier Ambulatory Surgery of Austin, L.L.P., filed a petition for writ of mandamus in this Court. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. (1) In the petition, relator asks this Court to direct the Honorable Orlinda Naranjo, presiding judge of the 419th Judicial District Court of Travis County, to withdraw her November 30, 2007, order denying relator's motion to compel certain discovery and her December 11, 2007, order denying relator's motion to disqualify counsel for the real parties in interest David W. Hilgers, Hilgers & Watkins, P.C., and Brown McCarroll, L.L.P. (2)
Relator has not established its entitlement to the extraordinary relief of a writ of mandamus. See In re Cerberus Capital Management, L.P., 164 S.W.3d 379, 382 (Tex. 2005); In re Nitla S.A. de C.V., 92 S.W.3d 419, 422-23 (Tex. 2002); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Accordingly, we deny relator's petition for writ of mandamus.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Filed: March 13, 2008
1. On January 29, 2008, relator also filed an emergency request for temporary stay with this Court. Relator advised this Court on February 7, 2008, that the parties had reached an agreement rendering the request for temporary stay moot. We, therefore, dismiss relator's request for temporary stay as moot.
2. On January 11, 2008, real parties in interest tendered to this Court a sealed box containing copies of the documents that Judge Naranjo reviewed in camera in connection with relator's motion to compel. See Tex. R. Civ. P. 193.4. Real parties in interest requested that this Court keep the sealed box of documents separate from the remainder of the record and permit only court personnel who are necessary to the consideration of the case to review the contents. We grant real parties in interest's request as to these documents.

March 13, 2008 - Wendi Mae Davidson v. The State of Texas--Appeal from 51st District Court of Tom Green County AFFIRMED: (Before Justices Patterson, Puryear and Pemberton)

Wendi Mae Davidson v. The State of Texas--Appeal from 51st District Court of Tom Green County

March 13, 2008 -Wendi Mae Davidson v. The State of Texas--Appeal from 51st District Court of Tom Green County
AFFIRMED: (Before Justices Patterson, Puryear and Pemberton)

Wendi Mae Davidson v. The State of Texas--Appeal from 51st District Court of Tom Green County

March 13, 2008 - Wendi Mae Davidson v. The State of Texas--Appeal from 51st District Court of Tom Green County
AFFIRMED: (Before Justices Patterson, Puryear and Pemberton)

Wendi Mae Davidson v. The State of Texas--Appeal from 51st District Court of Tom Green County

Houston Wire & Cable Company v. Susan Combs, No. (Tex.App.- Austin, Mar. 12, 2008) ( ) (Before Justices Patterson, Puryear and Pemberton)
Full style: Houston Wire & Cable Company vs. Susan Combs, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General of the State of Texas
Appeal from 200th District Court of Travis

M E M O R A N D U M O P I N I O N

Upon consideration of appellant's motion for rehearing, we overrule the motion; however, we withdraw our opinion and judgment dated December 12, 2007, and substitute the following. Houston Wire & Cable Company ("HWC") appeals the Comptroller's (1) denial of a sales tax refund claim for its purchase of cable reels, arguing that its purchase of reels was non-taxable. In two issues, HWC challenges the legal and factual sufficiency of the evidence, contending that the purchases are not taxable because the reels qualify for the sale-for-resale exemption, see Tex. Tax Code Ann. § 151.302(a) (West 2002), and because HWC qualifies for the manufacturing exemption, see id. § 151.318(a)(1) (West Supp. 2006). (2) We reject HWC's contentions and affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

The background facts are undisputed. HWC is a supplier of electrical wire and cable. HWC buys cable in bulk from suppliers and maintains the cable in its inventory. HWC cuts, spools, and delivers cable according to the specific needs of its customers, who are primarily electrical wholesalers and distributors. When HWC purchases cable from its suppliers, the cable is delivered on reels. When HWC receives orders from its customers, it cuts and respools the cable onto new reels. The reels used by HWC to respool the cable are the subject of this lawsuit. They are purchased by HWC to allow it to customize the cable assemblies for its customers. A customer's order could specify, for instance, the type, arbor size, color, coding, labeling, lagging, attachments, or fumigations requirements for the reels. In the process of respooling, HWC attaches the reels to the specific cable ordered by the customer.
The parties agree that purchases of the cable itself qualify for the sale-for-resale sales tax exemption. HWC contends that its purchases of the reels, likewise, qualify for the sale-for-resale exemption and therefore paid the sales tax under protest for the period in question, August 1, 1997, through December 31, 2001. The amount of the refund at issue is $160,596.03, which includes the tax paid on the reels plus statutory pro rata interest for the refund period.
HWC contends that it is entitled to a refund because purchases of the reels, like purchases of the cable, qualify for the sale-for-resale exemption. Alternatively, even if the reels are excluded from the sale-for-resale exemption, HWC argues that it is entitled to a refund because it qualifies for the manufacturing exemption. On both points, HWC challenges the legal and factual sufficiency of the district court's findings.
After the Comptroller denied its refund claim, HWC filed suit in district court. Following a trial de novo, see Tex. Tax Code Ann. §§ 112.054, .154 (West 2001), the district court granted judgment in favor of the Comptroller on all issues. This appeal followed.

Howard v. Harris County Hospital District and TWCC, No. (Tex. App. - Austin, Mar. 12, 2008)() (Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 53rd District Court of Travis County

M E M O R A N D U M O P I N I O N

Andre Joel Howard filed a notice of appeal on February 7, 2008. He has perfected appeal from his "Motion to Extend Time to File Motion to Reconsider Mandate Motion to Amend Plaintiff's Motion to Appeal Motion to Reinstate." An appeal lies only from a final judgment or appealable interlocutory order. Lehmann v. Har-Con Corp., 988 S.W.2d 415, 417 (Tex. 2001) (final judgment); Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2007) (categories of appealable interlocutory orders). Appellant's previous appeal in the same underlying cause was dismissed by this Court for want of jurisdiction because he attempted to appeal orders that were not subject to appeal. See Howard v. Harris County Hosp. Dist., No. 03-06-00488-CV, slip. op. (Tex. App.--Austin Sept. 7, 2006). His motion to reinstate the appeal was denied by this Court. The Texas Supreme Court denied his petition for review. Howard v. Harris County Hosp. Dist., No. 07-330, 2007 Tex. LEXIS 571, *1 (Tex. 2007). The time has long since passed for any further review of this Court's dismissal of his previous attempted appeal. The order from which he now attempts to appeal is not appealable. (1)
We dismiss the appeal for want of jurisdiction. (2) See Tex. R. App. P. 42.3(a).
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed for Want of Jurisdiction
Filed: March 12, 2008
1. Of course, given that his appeals have been dismissed for lack of an appealable order, his case remains pending in the trial court.
2. Appellant's pending motion to proceed as an indigent is dismissed.

March 12, 2008 - Markum Woodrow Peavey v. The State of Texas--Appeal from 368th District Court of Williamson County
AFFIRMED: (Before Justices Onion, Puryear and Henson)

Markum Woodrow Peavey v. The State of Texas--Appeal from 368th District Court of Williamson County

March 12, 2008 - Terry Michael Dalton v. The State of Texas--Appeal from 390th District Court of Travis County
AFFIRMED ON REHEARING: (Before Justices Patterson, Puryear and Pemberton)

Terry Michael Dalton v. The State of Texas--Appeal from 390th District Court of Travis County

March 12, 2008 - David Alexander Bailey v. The State of Texas--Appeal from 27th District Court of Lampasas CountyABATED: (Before Chief Justice Law, Justices Pemberton and Waldrop)

David Alexander Bailey v. The State of Texas--Appeal from 27th District Court of Lampasas County

March 12, 2008 - Teodoro Sosa v. The State of Texas--Appeal from 167th District Court of Travis County
ABATED: (Before Justices Patterson, Puryear and Henson)

Teodoro Sosa v. The State of Texas--Appeal from 167th District Court of Travis County

March 12, 2008 - In re Sterling Shepard--Appeal from 147th District Court of Travis CountyAFFIRMED: (Before Chief Justice Law, Justices Pemberton and Waldrop)
In re Sterling Shepard--Appeal from 147th District Court of Travis County

March 12, 2008 -
Barry Lee Briggs v. The State of Texas--Appeal from County Court at Law No. 3 of Travis CountyABATED: (Before Justices Patterson, Puryear and Henson)

Barry Lee Briggs v. The State of Texas--Appeal from County Court at Law No. 3 of Travis County

March 12, 2008 - Johnny Anthony Moreno v. The State of Texas--Appeal from 368th District Court of Williamson County
DISMISSED FOR WANT OF JURISDICTION: (Before Chief Justice Law, Justices Pemberton and Waldrop)

Johnny Anthony Moreno v. The State of Texas--Appeal from 368th District Court of Williamson County

March 10, 2008 - Robert Allen Hall v. The State of Texas--Appeal from 33rd District Court of Burnet County
AFFIRMED: (Before Justices Patterson, Puryear and Henson)

Robert Allen Hall v. The State of Texas--Appeal from 33rd District Court of Burnet County

March 10, 2008 - Jeffery Lee Hoyle v. The State of Texas--Appeal from 119th District Court of Runnels County
Civil Causes Decided:
Criminal Causes Decided:
AFFIRMED: (Before Justices Patterson, Puryear and Henson)

Jeffery Lee Hoyle v. The State of Texas--Appeal from 119th District Court of Runnels County