Opinion
No. 07-13-00445-CV
09-28-2016
IN THE INTEREST OF J.Z.P. AND J.Z.P., MINOR CHILDREN
On Appeal from the 181st District Court Randall County, Texas
Trial Court No. 60909-B, Honorable John B. Board, Presiding
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Vicky De La Cruz, appealed from the trial court's letter ruling denying her motion for reconsideration of an oral denial of her "Motion to Reopen and to Vacate Order" that requested the trial court vacate its July 25, 2013 Order in Suit to Modify Parent-Child Relationship. Because the trial court has granted De La Cruz's motion for new trial, we dismiss for want of jurisdiction.
After this Court's review, we dismissed the appeal for want of jurisdiction on the basis that De La Cruz's notice of appeal was untimely filed and did not invoke our jurisdiction. See In re J.Z.P., 481 S.W.3d 231, 235 (Tex. App.—Amarillo 2014), rev'd, 484 S.W.3d 924 (Tex. 2016). On discretionary review, the Texas Supreme Court disagreed and held that De La Cruz's "Motion to Reopen and to Vacate Order" extended post-judgment deadlines. See 484 S.W.3d at 925. Consequently, it reversed our judgment and remanded the case for further proceedings. See id. at 925-26. On remand, we determined that De La Cruz's motion was timely filed pursuant to Texas Rule of Civil Procedure 306a(4), and met the requirements of Rule 306a(5). In re J.Z.P., No. 07-13-00445-CV, 2016 Tex. App. LEXIS 7029, at *5 (Tex. App.—Amarillo June 30, 2016, no pet.) (order) (per curiam). As such, we abated the appeal and remanded the case to the trial court to hold a hearing, execute findings of fact and conclusions of law relating to when De La Cruz first received actual notice or acquired knowledge of the modification order, and to rule on De La Cruz's "Motion to Reopen and to Vacate Order." See id. at *5-6. On September 1, 2016, this Court received the second supplemental clerk's record in this case that contains the trial court's "Order in Response to Court of Appeals Mandate." By this Order, the trial court finds and concludes that De La Cruz's Motion was timely filed, and orders that the Motion is granted and the July 25, 2013 Order in Suit to Modify Parent-Child Relationship is vacated.
An order granting a new trial reinstates a case on the trial court's docket "the same as though no trial had been had." Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005). An order granting a new trial deprives an appellate court of jurisdiction over the appeal. In re K.F., No. 07-08-00102-CV, 2008 Tex. App. LEXIS 2068, at *2 (Tex. App.—Amarillo Mar. 19, 2008, no pet.) (mem. op.) (citing Boris v. Boris, 642 S.W.2d 855, 856 (Tex. App.—Fort Worth 1982, no writ)).
In the present case, the trial court's "Order in Response to Court of Appeals Mandate" vacates the order from which De La Cruz appeals. This grants her the relief she is requesting by this appeal. Consequently, because there is no final order or judgment in this case, and having given the parties the required ten days' notice, see TEX. R. APP. P. 42.3(a), we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f).
By letter dated September 6, 2016, this Court notified the parties that it appeared that we no longer have jurisdiction over this appeal and directed them to show cause, by September 16, why the appeal should not be dismissed. To this date, no response has been received. --------
Mackey K. Hancock
Justice