Nicolas Molina v. Housing Authority of The City of San Antonio--Appeal from County Court At Law No 10 of Bexar County

MEMORANDUM OPINION
No. 04-04-00774-CV
Nicolas MOLINA,
Appellant
v.
HOUSING AUTHORITY OF THE CITY OF SAN ANTONIO,
Appellee
From the County Court at Law No. 10, Bexar County, Texas
Trial Court No. 288245
Honorable Irene Rios, Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December1, 2004

DISMISSED FOR LACK OF JURISDICTION

On October 29, 2004, appellant filed an Emergency Motion to Suspend Enforcement of Judgment Pending Appeal by Alternate Security In Lieu of Supersedeas Bond. The motion states that the trial judge approved a supersedeas bond in the amount of $2,328.00 but ordered the bond filed by appellant to be struck because the bond was not conditioned pursuant to Rule 24.1(d) and the bond failed to provide that the sureties are liable for the full amount of the bond in the event that the appellant fails to prosecute his appeal with effect. Thus, the order striking the bond did not increase the amount of the surety; instead, the order was based on the form of the bond.

In his motion, appellant requested that this court grant relief and supersede enforcement of the underlying judgment based on the plan stated in the motion. On November 2, 2004, this court issued an order, stating that it has no authority to review a matter concerning a supersedeas bond under Rule 24 until our jurisdiction is properly invoked by the filing of a notice of appeal. See Falcinelli v. Kirkland, No. 07-98-0192-CV, 1998 WL 409815, at *1 (Tex. App.--Amarillo July 22, 1998, pet. dism'd w.o.j.) (not designated for publication); see generally Elaine A. Carlson, Enforcing and Superseding the Judgment While on Appeal, State Bar of Tex. Prof. Dev. Program, Advanced Civil Appellate Practice Course Chapter 7, p.8 (2003) (stating a judgment or order whose enforcement is sought to be suspended must be the subject of an actual pending appeal). We ordered appellant to show cause in writing why we should not dismiss appellant's motion for lack of jurisdiction.

On November 15, 2004, appellant responded to our order, asserting that he invoked our jurisdiction by filing the motion, and his notice of appeal is not due to be filed because his motion for new trial is pending. In order for this court to have jurisdiction to consider appellant's motion regarding his supersedeas bond, our appellate jurisdiction must be invoked by the filing of a notice of appeal even if the filing is premature. See Falcinelli v. Kirkland, No. 07-98-0192-CV, 1998 WL 409815, at *1; see generally Elaine A. Carlson, Enforcing and Superseding the Judgment While on Appeal, State Bar of Tex. Prof. Dev. Program, Advanced Civil Appellate Practice Course Chapter 7, p.8 (2003). Because our jurisdiction has not been invoked, appellant's motion is dismissed for lack of jurisdiction.

PER CURIAM