Opinion
No. 08-07-00335-CV
March 13, 2008.
Appeal from County Court at Law No. 6 of El Paso County, Texas, (TC #2006-3580).
Before CHEW, C.J., McCLURE, and CARR, JJ.
MEMORANDUM OPINION
Pending before the Court is the amended joint motion of Appellants, Cemex of El Paso, Inc., Cemex, Inc., and Cemex Construction Materials L.P., and Appellee, Eduardo Tarin, to vacate the trial court's judgment and release the surety on the supersedeas bond because the parties have entered into a settlement agreement. In their original motion, the parties requested that we also dismiss the appeal. By letter, we notified the parties that we could not vacate the trial court's judgment and dismiss the appeal, and the parties responded by filing an amended motion which omitted the request to dismiss the appeal.
An intermediate court of appeals is authorized to vacate the trial court's judgment and dismiss the underlying case. See Tex.R.App.P. 43.2(e) (in its judgment, the court of appeals may vacate the trial court's judgment and dismiss the case). Further, Rule 42.1 of the Texas Rules of Appellate Procedure permits an appellate court to dispose of an appeal pursuant to an agreement of the parties. Tex.R.App.P. 42.1(a)(2). We may render judgment effectuating the parties' agreement, set aside the trial court's judgment, and remand the case to the trial court for rendition of judgment in accordance with the agreement, or abate the appeal and permit proceedings in the trial court to effectuate the agreement. Tex.R.App.P. 42.(1)(a)(2). While we are authorized to vacate the trial court's judgment and dismiss the underlying case, we are unable to both vacate the trial court's judgment and dismiss the appeal. The parties have not requested that we dismiss the underlying case.
Accordingly, we grant the motion to dispose of the appeal in accordance with the parties' agreement. The judgment of the trial court is vacated. The clerk of the trial court shall release the surety, Travelers Casualty and Surety Company of America, from further liability on the supersedeas bond filed in the case. Because the parties have not made an agreement regarding costs on appeal, we tax those costs against Appellant. See Tex.R.App.P. 42.1(d) (absent agreement of the parties, the court will tax costs against the appellant).