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joseph-paul-jernigan-v-texas-department-of-criminal-justice-james-a ( 1993 )


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  • IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,


    AT AUSTIN








    NO. 3-93-402-CV




    JOSEPH PAUL JERNIGAN,


    APPELLANT



    vs.






    TEXAS DEPARTMENT OF CRIMINAL JUSTICE; JAMES A. LYNAUGH,

    EXECUTIVE DIRECTOR; THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

    PARDONS AND PAROLES DIVISION; ITS CHAIR, JACK KYLE;

    AND ITS BOARD MEMBERS, IRMA CAULEY, KENNETH COLEMAN,

    BENNIE ELMORE, JOHN ESCOBEDO, ALBERT SANCHEZ, MAE JACKSON,

    TERRIE SCHNORRENBERG, WINONA MILES, DANIEL DOWNS, PAUL PREJEAN,

    MARY LEAL, HENRY KEENE, IRIS LAWRENCE, TROY FOX, HUB BECHTOL,

    AND GILBERT RODRIGUEZ; AND JAMES A. COLLINS, DIRECTOR OF THE

    INSTITUTIONAL DIVISION, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,




    APPELLEES





    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT


    NO. 93-09209, HONORABLE JOSEPH H. HART, JUDGE PRESIDING





    PER CURIAM



    Appellant Joseph Paul Jernigan sought to appeal from an order of the district court of Travis County denying his request for a temporary restraining order. See Tex. R. Civ. P. 680. We will dismiss the appeal for want of jurisdiction because the order is a non-appealable interlocutory order.

    Jernigan was convicted of capital murder and a sentence of death imposed. See Jernigan v. State, 661 S.W.2d 936 (Tex. Cr. App. 1983), cert. denied, 464 U.S. 986 (1983). In August 1993, he filed suit in the district court of Travis County against the Texas Department of Criminal Justice, its executive director, the Department's Pardons and Paroles Division, the Board's chairman and members, and the executive director of the Department's Institutional Division. (1) Ancillary to his claims on the merits, Jernigan requested that the district court grant him injunctive relief to enjoin his execution scheduled for August 5, 1993. See Tex. R. Civ. P. 680 - 683. The district court issued an order denying the request for temporary restraining order on August 4, 1993. Jernigan made a cash deposit in lieu of appeal bond with the district clerk of Travis County to appeal that order. (2) See Tex. R. App. P. 40(a)(1), 42(a).

    Absent certain exceptions, an appellate court has jurisdiction to review only final judgments. 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). Pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 51.014(4) (West Supp. 1993), a party may appeal an interlocutory order that refuses an application for temporary injunction. An order denying a temporary restraining order, however, is not a refusal of a temporary injunction and, therefore, is not appealable. Jackson v. Lubben, 502 S.W.2d 860, 862 (Tex. Civ. App. 1973, writ dism'd); see Henderson v. Shell Oil Co., 182 S.W.2d 994, 995 (Tex. 1944); Eichelberger v. Hayton, 814 S.W.2d 179, 182 (Tex. App.--Houston [1st Dist.] 1991, writ denied).

    The order from which Jernigan sought to appeal expressly states that the district court denied Jernigan's request for a temporary restraining order. Accordingly, we dismiss the appeal for want of jurisdiction.



    [Before Chief Justice Carroll, Justices Aboussie and Kidd]

    Appeal Dismissed

    Filed: August 25, 1993

    [Do Not Publish]

    1. 1 Appellees are the Texas Department of Criminal Justice; its executive director, James A. Lynaugh; the Texas Department of Criminal Justice, Pardons and Paroles Division; the Board's chairman, Jack Kyle; the Board's members, Irma Cauley, Kenneth Coleman, Bennie Elmore, John Escobedo, Albert Sanchez, Mae Jackson, Terrie Schnorrenberg, Winona Miles, Daniel Downs, Paul Prejean, Mary Leal, Henry Keene, Iris Lawrence, Troy Fox, Hub Bechtol, and Gilbert Rodriguez; and the director of the Texas Department of Criminal Justice, Institutional Division, James A. Collins.

    2. 2 Jernigan also filed a motion for leave to file petition for writ of injunction in this Court seeking to enjoin the execution scheduled for August 5, 1993. See Tex. R. App. P. 121. This Court denied the motion for leave to file. See Jernigan v. Texas Dept. of Criminal Justice, No. 3-93-401-CV (Tex. App.--Austin Aug. 4, 1993, orig. proceeding) (not designated for publication).