Nichols, Carl J. v. Dallas County

 
DISMISS; Opinion Filed October 24, 2011.
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-01426-CV
............................
CARL J. NICHOLS, Appellant
V.
COUNTY OF DALLAS, Appellee
.............................................................
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-30364-T-I
.............................................................
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Lang-Miers
 
Carl J. Nichols, appearing pro se, appeals from an order denying
his petition for excess proceeds relating to a tax lien foreclosure
sale. See Footnote 1 The Texas Tax Code, however, indicates that an
order on a petition for excess proceeds is appealable only if the order
directs that excess proceeds be paid. See Tex. Tax Code Ann. § 34.04(e)
(West Supp. 2010) (“An order under this section directing that all or
part of the excess proceeds be paid to a party is appealable.”). As a
result, we sent a letter to the parties on August 19, 2011 raising this
jurisdictional issue and directing the parties to file a letter brief
addressing our jurisdiction over this appeal.
In response to our letter appellant filed a jurisdictional
brief. In his brief appellant argues that the trial court's order
denying his petition for excess proceeds is appealable under section
34.04(e) because it “ratified the prior unlawful disbursement of excess
 
proceeds” and therefore “constitutes the equivalent of an order
directing all excess proceeds to be paid to the appellees.”
Alternatively, appellant argues that section 34.04(e) must be construed
to provide for appeals from denials of petitions for excess proceeds “in
order to avoid constitutional infirmity transgressing upon” appellant's
rights under the Texas and United States constitutions. We disagree with
appellant.
From September 1, 2001 to August 31, 2009, section 34.04(e)
stated, “an order under this section is appealable.” Act effective Sept.
1, 2001, 77th Leg., R.S., ch. 1430, 2001 Tex. Gen. Laws 5118 (amended
2009) (current version at Tex. Tax Code Ann. § 34.04(e) (West Supp.
2010)). Now section 34.04(e) states, “An order under this section
directing that all or part of the excess proceeds be paid to a party is
appealable.” Tex. Tax Code Ann. § 34.04(e). Appellant acknowledges that
his notice of appeal was filed in November 2009, and he agrees that “the
2009 amended version [of section 34.04(e)] applies in this case, not the
old 2001 version.” Because section 34.04(e) does not provide for an
appeal from an order denying a petition for excess proceeds, we conclude
that we lack jurisdiction over this appeal. See id. We dismiss this
appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).
 
ELIZABETH
LANG-MIERS
JUSTICE
091426F.P05
-------------------
Footnote 1
The County of Dallas responded to appellant's petition and noted,
among other things, that the property at issue was sold at a tax sale in
 
May 2007, and in July 2009, pursuant to section 34.03(b) of the Texas
Tax Code, “the unclaimed proceeds remaining in the Court's registry were
disbursed to the taxing units who participated in the sale of the
property.” The county also cited section 34.04(a) of the tax code and
argued, among other things, that appellant was barred from recovering
excess proceeds because he did not file his petition within two years
from the date of the sale. The trial court denied appellant's petition
on the ground that “[n]o excess proceeds exist.”
-------------------