In the Matter of M.R.--Appeal from 73rd Judicial District Court of Bexar County

99-00932 In the Matter of MR a Juvenile.wpd No. 04-99-00932-CV
IN THE MATTER OF M.R., a Juvenile
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 95-JUV-1539
Honorable Andy Mireles, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Delivered and Filed: September 20, 2000

ORDER VACATED

M.R. appeals the trial court's order transferring him to the Texas Department of Criminal Justice-Institutional Division, arguing the trial court was without jurisdiction to enter the order. We agree.

Factual and Procedural Background

M.R. was found delinquent for engaging in aggravated sexual assault and assessed a fifteen year determinate sentence. This court affirmed the adjudication of delinquency. In re M.R., No. 04-96-00283-CV, 1998 WL 429626 (Tex. App.--San Antonio July 31, 1998, no pet.) (not designated for publication). The trial court subsequently held a release/transfer hearing and ordered M.R. to be transferred on his eighteenth birthday to the Texas Department of Criminal Justice--Institutional Division to serve the remainder of his sentence. On November 3, 1999, this court reversed the transfer order and remanded the cause because M.R. had been denied his right of confrontation at the release/transfer hearing. In re M.R., 5 S.W.3d 879 (Tex. App.--San Antonio 1999, pet. denied). On December 2, 1999, the State filed a petition for review with the Texas Supreme Court. The Supreme Court denied the petition on June 15, 2000. A mandate has yet to issue from this court reversing the trial court's transfer order and remanding the cause to the trial court for further proceedings. However, on December 10, 1999, the trial court held another transfer/release hearing and three days later issued a second order transferring M.R. to the Texas Department of Criminal Justice--Institutional Division. M.R. appeals, arguing the trial court was without jurisdiction to issue this second transfer order while the State's petition for review was pending in the Supreme Court and before a mandate had issued.

Discussion

Once an appeal has been taken from a trial court's judgment or order, the trial court loses jurisdiction over the cause during the pendency of the appeal. See Robertson v. Ranger Ins. Co., 689 S.W.2d 209, 210 (Tex. 1985); 6 McDonald & Carlson, Texas Civil Practice 7.11[d] (2d ed. 1998). Consequently, the trial court was without power to enter the second transfer order while the State's petition for review was still pending in the Supreme Court. Therefore, we hold the trial court's second transfer order is void, and we vacate the trial court's December 13, 1999 transfer order.

Sarah B. Duncan, Justice

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