Shakeel Mustafa v. Pakiza Asim

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00476-CV
Shakeel Mustafa, Appellant
v.
Pakiza Asim, Appellee
FROM COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
NO. 11-0061-FC1, HONORABLE JOE CARROLL, JUDGE PRESIDING
MEMORANDUM OPINION
On July 14, 2017, appellant Shakeel Mustafa filed a notice of appeal from “all
portions of the [April 17, 2017] Order Holding Shakeel Mustafa in Contempt.” Appellee Pakiza
Asim has now filed a motion to dismiss Mustafa’s appeal on the ground that the contempt order is
not reviewable by direct appeal.1 See Ex parte Williams, 690 S.W.2d 243, 243 n.1 (Tex. 1985). In
his response, Mustafa does not dispute that we lack jurisdiction to review the April 17 contempt
order in this appeal. Mustafa, instead, asserts that the motion to dismiss should be denied because
he has now filed a motion to amend his notice of appeal stating that he “no longer desires to
prosecute his appeal from the [April 17 contempt order]” and that he “desires to appeal from a
different order—the July 17, 2017, ‘Order in Suit to Modify the Parent-Child Relationship.’”
1
Although a contempt order is not reviewable by direct appeal, a contempt order “may be
attacked by a petition for writ of habeas corpus (if the contemnor is confined) or a petition for writ
of mandamus (if no confinement is involved).” In re Office of Attorney Gen. of Tex., 215 S.W.3d 913,
915 (Tex. App.—Fort Worth 2007, orig. proceeding).
Rule 25.1(g) of the Texas Rules of Appellate Procedure allows an appellant to file
an amended notice of appeal to “correct a defect or omission in an earlier filed notice.” Tex. R. App.
P. 25.1(g) (emphasis added). Rule 25.1(g) does not, however, allow an appellant to alter his notice
of appeal from appealing one interlocutory order to appealing an entirely separate order. Rainbow
Grp., Ltd. v. Wagoner, 219 S.W.3d 485, 493 (Tex. App.—Austin 2007, no pet.); see also Ganesan
v. Reeves, 236 S.W.3d 816, 817 (Tex. App.—Waco 2007, pet. denied) (noting that rule 27.1,
allowing court of appeals to treat premature notice of appeal as effective, does not allow party to file
notice of appeal as appellate placeholder in anticipation of appeal that may occur somewhere in
indefinite future). Accordingly, we deny Mustafa’s motion to amend his notice of appeal.2
Because a contempt judgment is not reviewable by direct appeal, we do not have
jurisdiction over this appeal. See Ex parte Williams, 690 S.W.2d at 243. We grant Asim’s motion
and dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Field, and Bourland
Dismissed for Want of Jurisdiction
Filed: November 15, 2017
2
Mustafa has also separately filed a notice of appeal from the July 17 order, and the Clerk
of this Court has assigned cause number 03-17-00702-CV to that appeal. Mustafa requests, in the
alternative, that the Court transfer the appellate record, which has already been filed in this cause,
to his new appeal. We grant this request and direct the Clerk of the Court to transfer the record. We
express no opinion as to whether Mustafa’s most recent notice of appeal is timely or whether we
have jurisdiction over that appeal. See Tex. R. App. P. 26.1.
2