Kim Hackler and Steve Hackler, Individually and as Next Friends for Chris Hackler, a Minor v. Nicholas Depinto, Ingrid Depinto, Joe Depinto, Travis Wheeler, Kelly Wheeler, Steve Wheeler, Ashley McBrid

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 2nd District Court of Appeals » 2007 » Kim Hackler and Steve Hackler, Individually and as Next Friends for Chris Hackler, a Minor v. Nicholas Depinto, Ingrid Depinto, Joe Depinto, Travis Wheeler, Kelly Wheeler, Steve Wheeler, Ashley McBrid

State: Texas

Court: Criminal Court of Appeals

Docket No: 02-07-00344-CV

Case Date: 12/20/2007

Plaintiff: CURTIS LARIS METCALFE

Defendant: THE STATE OF TEXAS (Other)

Preview:In the Interest of H.G. a/k/a H.D.M. and J.T. a/k/a J.M., Children--Appeal from 289th Judicial District Court of Bexar County
MEMORANDUM OPINION No. 04-06-00031-CV IN THE INTEREST OF H.G. a/k/a H.D.M. and J.T. a/k/a J.M., Children From the 289th Judicial District Court, Bexar County, Texas Trial Court No. 1990-PA-01887 Honorable Richard Garcia, Judge Presiding

PER CURIAM Sitting: Sarah B. Duncan , Justice Karen Angelini , Justice Sandee Bryan Marion , Justice Delivered and Filed: April 5, 2006 DISMISSED FOR LACK OF JURISDICTION As permanent managing conservator of J.M., the Texas Department of Family and Protective Services ("Department") appeals the trial court's November 17, 2005 order requiring J.M.'s foster parents to enroll him in the Christian Military Academy and requiring the Department to pay a share of the tuition above and beyond its foster care payment and to file assault charges against J.M. for shoving his foster mother. We dismiss the Department's appeal for lack of jurisdiction. The Family Code contains many provisions regarding orders that are and are not appealable. (1)Although none address the type of order rendered in this case, section 109.002 is instructive. This section permits a party to appeal a "final order" rendered in a suit affecting the parent-child relationship and provides that the appeal "shall be as in civil cases generally." Tex. Fam. Code Ann. 109.002(a), (b) (Vernon 2002). In a civil case an appeal may be prosecuted only from a final judgment or order or from an interlocutory order the legislature has deemed appealable. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195, 205-06 (Tex. 2001); Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). As a general rule, a final judgment or order is one that disposes of all pending parties and claims in the record. Lehmann, 39 S.W.3d at 195, 205-206; but see id. (noting that an order that does not dispose of all pending parties and claims may also be final and appealable if it resolves a discrete issue in a probate or receivership case). The Department seeks to appeal an order the does not dispose of all pending parties and claims; it pertains only to J.M. and his education. Accordingly, it is interlocutory and appealable only if authorized by statute. See Lehmann, 39 S.W.3d at 195, 205-06; Stary, 967 S.W.2d at 352-53. We are not aware of any Texas statute authorizing an interlocutory appeal from a trial court's order rendered during its statutorily-mandated oversight of the Department's care of children over whom it has been appointed permanent managing conservator. See Tex. Civ. Prac. & Rem. Code Ann. 51.014 (Vernon Supp. 2005) (listing appealable interlocutory orders); see also supra note 1 and accompanying text.

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On February 9, 2006, we ordered the Department to file, on or before March 10, 2006, a response showing cause why this appeal should not be dismissed for lack of jurisdiction. See Tex. R. App. P. 42.3(a). The Department has not responded. We therefore dismiss this appeal for lack of jurisdiction. Costs are assessed against the party incurring them. See Tex. Hum. Res. Code Ann. 40.062 (Vernon Supp. 2005). PER CURIAM 1. See Tex. Fam. Code Ann. 6.507 (Vernon 1998) (providing that a temporary order appointing a receiver during the pendency of a divorce proceeding is subject to interlocutory appeal); 105.001 (Vernon Supp. 2005) (listing the various temporary orders rendered before a final order in a suit affecting the parent child relationship that are not subject to interlocutory appeal); 109.001 (Vernon 2002) (listing the various temporary orders rendered during the pendency of an appeal of a final order in a suit affecting the parent child relationship that are not subject to interlocutory appeal); 109.002 (Vernon 2002) (providing that a final order in a suit affecting the parent child relationship is appealable); 155.204 (Vernon Supp. 2005) (providing that an order transferring or refusing to transfer a proceeding affecting the parent child relationship is not subject to interlocutory appeal); 263.401 and 263.405 (Vernon Supp. 2005) (describing a final order for a child under the Department's care and the procedures governing an appeal).

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