Jimmy Lee Sweed v. City of El Paso ( 2006 )

Form: Dismiss TRAP 42.3

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JIMMY LEE SWEED,                             Appellant, v. CITY OF EL PASO,                             Appellee.

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No. 08-06-00316-CV Appeal from the 346th District Court of El Paso County, Texas (TC# 93-2885)

MEMORANDUM OPINION

            Appellant Jimmy Lee Sweed, appearing pro se, filed his notice of appeal on November 15, 2006. It appears from the record that Appellant is attempting to appeal from a bill of review which was never ruled on by the trial court. Pending before the Court on its own initiative is the dismissal of this appeal for want of jurisdiction. See Tex.R.App.P. 42.3.

            This Court possesses the authority to dismiss an appeal for want of jurisdiction after giving proper notice to all parties. Id. On November 22, 2006, the Clerk of this Court notified Appellant, in accordance with Texas Rule of Appellate Procedure 42.3, that this Court may not have jurisdiction over his appeal because it appeared there was no appealable order and/or judgment. Appellant was advised that this appeal would be dismissed unless any party could show cause for continuing the appeal within ten days from the date of receipt of this Court’s letter. Appellant responded that his bill of review was overruled by operation of law when the trial court failed to make a ruling within thirty days from the date of filing, and thus an appealable order or judgment existed. This contention is incorrect.

            Since it appears there is no appealable order and/or judgment in this case, this Court is without jurisdiction to consider the appeal. See Dick Poe Motors, Inc. v. DaimlerChrysler Corp., 169 S.W.3d 507, 510 (Tex.App.--El Paso 2005, no pet.). Accordingly, we dismiss this appeal for want of jurisdiction. See Tex.R.App.P. 42.3(a).

                                                                        KENNETH R. CARR, Justice

December 21, 2006

Before Chew, C.J., McClure, and Carr, JJ.