Harrison v. TDCJ-ID , 2004 Tex. App. LEXIS 2719 ( 2004 )

ABATEMENT ORDER

PER CURIAM.

Alvin Lee Harrison filed suit against the Institutional Division of the Texas Department of Criminal Justice (“TDCJ”) and Kenneth Green, then warden of TDCJ’s Hughes Unit where Harrison was incarcerated. He requested injunctive relief against both defendants, a bench trial, and payment of his attorney’s fees and expenses. Green filed an answer and participated in the litigation. TDCJ did not answer or otherwise appear.¹

Green filed a motion to dismiss Harrison’s suit under section 14.008 of the Civil Practice and Remedies Code. Tex. Civ. PRAC. & Rem.Code Ann. § 14.008 (Vernon 2002). After a telephonic hearing, the court granted this motion. The court’s order denies the injunctive relief requested by Harrison and grants Green’s dismissal motion. However, the order does not make reference to Harrison’s claims against TDCJ or TDCJ’s status in the litigation. Because the order did not follow a conventional trial on the merits and does not purport to address Harrison’s claims against TDCJ, it is not a final, appealable order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.2001).

Because there is no final judgment, Harrison’s notice of appeal is premature. See Tex.R.App. P. 27. Rule of Appellate Procedure 27.2 provides in pertinent part that an “appellate court may allow an appealed order that is not final to be modified so as to be made final and may allow the modified order and all proceedings relating to it to be included in a supplemental record.” Id. 27.2. The Supreme Court has indicated that abatement is the proper procedural mechanism by which to accomplish this. See Lehmann, 39 S.W.3d at 206 & n. 92 (citing Tex.R.App. P. 27.2).

The dissent relies on State v. Morales, 869 S.W.2d 941, 949 (Tex.1994), as restricting our action at this point to dismissal for want of jurisdiction. We do not believe that the Morales decision requires dismissing this appeal, because:

• Morales predates Lehmann;

• The issue in Morales was subject-matter jurisdiction, not the finality of a judgment;

• Morales was a 5-4 decision;

• six of the justices who participated in Morales have left the court;

• Justice Hecht, who was in the majority in Morales, wrote the decision in Leh-mann; Justice Enoch, who was in the majority in Morales, concurred in Leh-mann; and Chief Justice Phillips, who joined the dissent in Morales, was in the majority in Lehmann.

Instead, we believe Lehmann provides express authority for the option we will exercise. Lehmann, 39 S.W.3d at 206.

It appears that the trial court intended to render a final judgment in Harrison’s case. However, the record does not contain a final judgment. Accordingly, we abate this cause to the trial court for further consideration of this matter. If the court intended to render a final judgment, then it should enter an appropriate order to effectuate its intent.

The trial court shall, within thirty days after the date of this Order: (1) conduct a hearing if necessary; (2) make appropriate orders and findings of fact and conclusions of law; and (3) deliver any orders and findings of fact and conclusions of law to the trial court clerk.

The trial court clerk shall: (1) prepare a supplemental clerk’s record containing all orders and findings of fact and conclusions of law which the trial court renders or makes; and (2) file the supplemental clerk’s record with the Clerk of this Court within forty-five days after the date of this Order.

Chief Justice GRAY dissenting.

1 . Green's motion to dismiss the suit says TDCJ was not served and did not voluntarily appear. Harrison’s response suggests otherwise.