Opinion
No. 10-07-00321-CV
Opinion delivered and filed February 20, 2008.
Appealed from the 21st District Court Burleson County, Texas Trial Court No. 24,146.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
This is the second proceeding filed by Stephens which requests relief from an order rendered by an associate judge and adopted by the trial court. The order holds Douglas in contempt for nonpayment of child support. Douglas first attacked the order by an application for writ of habeas corpus.
In yet a third proceeding, Stephens appeals the divorce decree. In the Matter of the Marriage of Charmane Stephens and Douglas Val Stephens, No. 10-06-00398-CV.
The application for a writ of habeas corpus was based, primarily, upon Stephens's arguments that 1) he had timely appealed the associate judge's ruling; and 2) no reporter's record had been made of the hearing before the associate judge and, therefore, the court could not hold Stephens in contempt because there was no record to support the judgment of contempt and he was, thus, precluded from showing error on appeal. Recognizing that Stephens was correct in his arguments, the Attorney General, nevertheless, argued the application should be denied. We denied the application because Stephens had not yet been restrained in his liberties. Id.
Because the time for a direct appeal of the district court's adoption of the associate judge's ruling had passed, Stephens then filed a restricted appeal. TEX. R. APP. P. 25.1(d)(7); 26.1(c). In this proceeding, the Attorney General recognizes that "the order signed by the referring court on June 4, 2008 [sic-2007] is erroneous because he [Stephens] had timely filed a notice of appeal to the referring court and it failed to hold a hearing on his appeal before signing the order." AG's brief at pg. 3. The Attorney General notes "Stephens would be correct and would be entitled to reversal but for one thing: the June 4th order is interlocutory." Id.
The Attorney General contends that the order which Stephens is trying to have reviewed is interlocutory because the "order explicitly reserves an issue for future trial and decision." Thus, the Attorney General contends that although the order is erroneous, because an issue was expressly reserved for trial and decision, the order is therefore interlocutory and we are without jurisdiction to review it.
The order contains the following provision:
The Court orders the issue of Nondisclosure Finding shall be tried by consent of the parties on 9-13-2007 at 9:00 A.M.
Order Enforcing Child Support and Medical Support Obligations, pg. 6 of 10, CR pg.11.
Stephens contends, in reply, that because the Family Code expressly makes every associate judge's order that is signed by the referring court reviewable, we have jurisdiction to review the order. See TEX. FAM. CODE ANN. § 201.016 (Vernon Supp. 2007).
We are compelled to agree with the Attorney General. The problem with Stephens's contention is that the statute does not expressly address the question of finality. Further, the statutory provision does not purport to be the exclusive provision for regulating all aspects of appeals from such orders. We find nothing about the statute that causes us to conclude that its provision does away with the finality requirement before bringing an appeal. Thus, we conclude that because the order expressly reserves determination of a pending issue, the order is interlocutory and not subject to review until it is made final by some other event. See Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). We, therefore, dismiss the appeal for want of jurisdiction.
We are somewhat baffled by the Attorney General's continued defense of an order it agrees is erroneous. It would seem that the parties could bring this issue to the trial court's attention and proceed to the hearing on the record of the appeal from the associate judge's order to which Stephens contends he is entitled and the Attorney General concedes was required.