Martin v. Hauck

Full title: ANTHONY L. MARTIN, Appellant v. TAMMY R. HAUCK, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 26, 2003

No. 05-02-00574-CV (Tex. App. Mar. 26, 2003)

Opinion

No. 05-02-00574-CV.

Opinion filed March 26, 2003.

Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. CC-02-3871-A.

DISMISSED.

Before Justices FRANCIS, FARRIS,¹ and ROSENBERG².

1 The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.

2 The Honorable Barbara Rosenberg, Former Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.

MEMORANDUM OPINION

Opinion By BARBARA ROSENBERG, JUSTICE, ASSIGNED.

Tammy Hauck obtained a judgment against Anthony L. Martin for $4,886.21. Martin filed a pauper's affidavit and his Notice of Appeal pursuant to Texas Rule of Civil Procedure 572. See Tex.R.Civ.P. 572. The justice of the peace denied the pauper's affidavit, and Martin filed his Appeal of Denial of Right to Appeal and of Pauper's Affidavit, also as provided in rule 572. See Tex.R.Civ.P. 572. After a hearing, the County Court at Law No. 1 denied the pauper's affidavit and denied Martin his appeal to the county court. Martin appeals the denial of the pauper's affidavit and the denial of his appeal.

In reviewing the record, we conclude that this action was filed in small claims court in that the petition, the $10 filing fee, and the judgment indicate this case was a small claim in small claims court. See Tex. Loc. Gov't Code Ann. § 118.121(1)(B) (Vernon 1999) (providing for $10 services fee in small claims court). This Court has stated that section 28.053(d) of the Texas Government Code deprives this Court of jurisdiction over an appeal of a final judgment of a county court at law following a de novo appeal from a small claims court. Howell Aviation Servs. v. Aerial Ads, Inc., 29 S.W.3d 321, 323 (Tex.App.-Dallas 2000, no pet.) (per curiam); Tex. Gov't Code Ann. § 28.053(d) (Vernon 1988). The appeal of a denial of a pauper's affidavit is de novo to the county court. Tex.R.Civ.P. 572. While a denial of a pauper's affidavit is not a judgment de novo on the merits of the cause, it is an order disposing of the appeal from small claims court. Because the county court has the final disposition of all matters from small claims court, the denial of the pauper's affidavit is not appealable to this Court. Accordingly, we lack jurisdiction over this appeal.³

3 Martin's November 12, 2002 motion for leave of court to submit appeal bond is DENIED as moot.

We dismiss this appeal for lack of jurisdiction.