In Re: John S. Smale, Deceased Appeal from Probate Court No. 2 of Dallas County (memorandum opinion)
Annotate this Case
Download PDF
Dismissed and Opinion Filed March 19, 2018 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-01241-CV IN RE JOHN S. SMALE, DECEASED On Appeal from the Probate Court No. 2 Dallas County, Texas Trial Court Cause No. PR-14-01527-2 MEMORANDUM OPINION Before Justices Bridges, Evans, and Whitehill Opinion by Justice Bridges By notice of appeal filed October 16, 2017, Brian A. Smale attempts to appeal the trial court’s July 28, 2017 order denying a tertiary recusal motion and the “lack of response by Supreme Court of Texas Chief Justice Nathan Hecht” to a request to “assign another judge to hear [certain motions].” We questioned our jurisdiction over the complaint concerning Chief Justice Hecht as the Court does not have jurisdiction over Texas Supreme Court justices. See generally TEX. GOV’T CODE ANN. § 22.220 (West Supp. 2017). We also questioned our jurisdiction over the order denying the recusal motion as it appeared the appeal was filed untimely. Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.–Dallas 2009, no pet.) (op. on reh’g) (timely filing of notice of appeal is jurisdictional). Specifically, an appeal from an order denying a tertiary recusal motion is only reviewable on appeal from a final judgment. See TEX. GOV’T CODE ANN. § 25.00256(d) (West Supp. 2017). The record before us reflects the final judgment in the underlying case was signed on June 29, 2017. Because no timely extension motion, motion for new trial or to modify judgement, or request for findings of fact and conclusions of law was filed, the notice of appeal was due no later than July 31, 2017. See TEX. R. APP. P. 26.1, 26.3. At our request, Smale filed a letter brief addressing our concerns. However, the letter brief fails to demonstrate our jurisdiction over the appeal. Accordingly, we dismiss the appeal. See id. 42.3(a). /David L. Bridges/ DAVID L. BRIDGES JUSTICE 171241F.P05 –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT IN RE JOHN S. SMALE, DECEASED, Appellant On Appeal from the Probate Court No. 2, Dallas County, Texas Trial Court Cause No. PR-14-01527-2. Opinion delivered by Justice Bridges, Justices Evans and Whitehill participating. No. 05-17-01241-CV In accordance with this Court’s opinion of this date, we DISMISS the appeal. We ORDER appellee Pamela Smale Williams recover her costs, if any, of this appeal from appellant Brian A. Smale. Judgment entered March 19, 2018. –3–
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
