FRANK HERNANDEZ v. AN UNINCORPORATED ASSOCIATION OF INDIVIDUALS CLAIMING TO BE THE SOVEREIGN CHEROKEE NATION TEJAS (2010)

MEMORANDUM OPINION

Opinion by Justice Richter

Appellant filed a notice of appeal from the trial court's October 6, 2009 interlocutory order denying his plea in abatement.   Because it did not appear we have jurisdiction over the appeal, we requested that the parties file letter briefs addressing our jurisdiction.

Appellant's response appears to be stating that we have jurisdiction because the plea in abatement was filed in conjunction with a bill of review, that there was a previous appeal from a final nunc pro tunc judgment, and that in the appeal from the nunc pro tunc judgment, this Court issued an opinion and judgment “recognizing the appellee as an Unincorporated Association of Individuals Claiming to be the Sovereign Cherokee Nation Tejas.” ²  Appellee did not respond.

Appellate courts have jurisdiction over final judgments and such interlocutory orders as the legislature deems appealable.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001);  Ruiz v. Ruiz, 946 S.W.2d 123, 124 (Tex.App.-El Paso 1997, no writ).   Appellate jurisdiction is never presumed.  Brashear v. Victoria Gardens of McKinney, L.L.C., No. 05-07-01269-CV, 2009 WL 4827862, *2 (Tex.App.-Dallas Dec. 16, 2009, no pet. h.) (op. on reh'g).   Unless the record affirmatively shows the propriety of appellate jurisdiction, we must dismiss.   Id.

Section 51.014 of the Texas Civil Practices and Remedies Code does not provide appellate jurisdiction over an interlocutory appeal from this order denying appellant's plea in abatement.   See Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon 2004).   Nor do any of the bases appellant asserts provide this Court with jurisdiction over the appeal from the interlocutory order.   Accordingly, we conclude we have no jurisdiction over the appeal.

We dismiss the appeal for want of jurisdiction.

091181F.P05

FOOTNOTES

FN2. The appeal appellant referenced was styled Frank Hernandez v. An Unincorporated Group of Individuals Claiming to be the Sovereign Cherokee Nation Tejas, No. 05-09-00675-CV (Tex.App.-Dallas Aug. 28, 2009, no pet.).   The style of the case was taken from the pleadings contained in the record.   The appeal was dismissed on appellant's motion following this Court's letter inquiring into the jurisdiction due to the untimely notice of appeal.   Nothing in that opinion commented on the merits of the underlying case..  FN2. The appeal appellant referenced was styled Frank Hernandez v. An Unincorporated Group of Individuals Claiming to be the Sovereign Cherokee Nation Tejas, No. 05-09-00675-CV (Tex.App.-Dallas Aug. 28, 2009, no pet.).   The style of the case was taken from the pleadings contained in the record.   The appeal was dismissed on appellant's motion following this Court's letter inquiring into the jurisdiction due to the untimely notice of appeal.   Nothing in that opinion commented on the merits of the underlying case.

MARTIN RICHTER JUSTICE