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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

The City of El Paso,

 

 Appellant,

v.

Guadalupe Ramirez, Norma Ramirez, 

Ramirez Pecan Farms, LLC, William H. 

Boutwell, Jackie Boutwell, Raul 

Zamorano, Jr., Amy K. Zamorano, Patricia 

Wynn, Individually and as Trustee of the 

Wynn Family Living Trust, Larry Webb, 

Maria L. Webb, James R. Raley, Yariela 

G. Raley, Russell T. Sturgeon, Kerry L. 

Sturgeon, Kenneth A. Johnson and Julie R. 

Johnson,

 Appellees.

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No. 08-18-00216-CV

Appeal from the

County Court at Law No. 5

of El Paso County, Texas 

(TC# 2017-2568)

O R D E R

This appeal is before the Court to determine whether it has jurisdiction of the City’s 

attempted appeal from an interlocutory judgment on liability. Additionally, we will consider the 

City’s petition for a permissive appeal pursuant to Rules 28.2 and 28.3 of the Texas Rules of 

Appellate Procedure.

On November 30, 2018, the City filed notice of appeal from the trial court’s interlocutory 

judgment on liability signed on November 15, 2018. The City based its appeal on Section 
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51.014(d) of the Civil Practice and Remedies Code. See TEX.CIV.PRAC. & REM.CODE ANN.

§51.014(d). On December 3, 2018, the City filed an amended notice of appeal which requested 

that the notice of appeal be considered as an application for an agreed interlocutory appeal pursuant 

to Section 51.014(f). See TEX.CIV.PRAC. & REM.CODE ANN. §51.014(f). As required by Rules 

28.2 and 28.3, the City attached a copy of the interlocutory judgment to the amended notice of 

appeal. See TEX.R.APP.P. 28.2(c)(3), 28.3(e)(2). That same day, the Clerk of the Court notified 

the parties that the Court intended to dismiss the appeal because the City had not filed a petition 

for permissive appeal as required by Rule 28.3.

The City responded by filing a second amended notice of appeal on December 5, 2018 

clarifying that the City was proceeding under Rules 28.2 and 28.3. The City asserted for the first 

time that it was also appealing the trial court’s denial of its plea to the jurisdiction as permitted by

Section 51.014(a)(8) of the Civil Practice and Remedies Code. See TEX.CIV.PRAC. & REM.CODE 

ANN. §51.014(a)(8). After reviewing the second amended notice of appeal, the Court notified the 

parties by letter that if the City intended to proceed under Rule 28.3, it was required to file an 

extension motion and petition no later than December 15, 2018. The City timely filed motions 

seeking an extension of time to file a petition pursuant to both Rules 28.2 and 28.3. The Court 

granted the City’s extension requests and the City timely filed its petition. 

We will first address whether we have jurisdiction of this appeal under Section 

51.014(a)(8). The trial court denied the City’s plea to the jurisdiction by order signed on March 

28, 2018, and the City expressly informed the trial court that it would not appeal that decision, but 

would instead proceed to trial on the issue of liability. After the bench trial, but before the court 

rendered its decision, the City re-urged its plea to the jurisdiction in a letter to the trial court 

regarding the procedural path for a potential appeal of the anticipated ruling on liability. The 
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City’s letter requested that if the trial court found that the City was liable that the court deny the 

City’s plea to the jurisdiction so that the City could pursue an appeal under Section 51.014(a)(8), 

or alternatively, if the court did not believe Section 51.014(a)(8) was applicable, that the court 

allow an agreed appeal pursuant to Section 51.014(d). The trial court chose the second path 

because it did not explicitly deny the plea to the jurisdiction but it allowed an appeal pursuant to 

Section 51.014(d). Even if it could be said that the trial court implicitly denied the City’s renewed 

plea to the jurisdiction, the Supreme Court has held that the deadline for an interlocutory appeal 

under this statute is not extended by the trial court’s denial of a motion to reconsider the prior 

ruling. See City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012) (per curiam). 

The deadline for filing notice of interlocutory appeal under Section 51.014(a)(8) must be strictly 

construed because it is a narrow exception to the general rule that only final judgments are 

appealable. Id., 388 S.W.3d at 665. The City’s notice of interlocutory appeal under Section 

51.014(a)(8) was due to be filed within twenty days after the trial court denied the plea to the 

jurisdiction on March 28, 2018. The City’s notice of appeal filed on November 30, 2018 is 

untimely and it does not perfect an appeal from the March 28, 2018 order denying the City’s plea 

to the jurisdiction. 

The City alternatively relies on both Rules 28.2 and 28.3. The comment to Rule 28.3 states 

that: “New Rule 28.3 applies only to appeals in cases that were filed in the trial court on or after 

September 1, 2011. Rule 28.2 applies only to appeals in cases that were filed in the trial court 

before September 1, 2011.” TEX.R.APP.P. 28.3, comment to 2011 amendment. The City’s petition 

states that the suit was originally filed on June 6, 2007. Consequently, Rule 28.3 is inapplicable. 

The City’s petition for permissive appeal pursuant to Rule 28.3 is therefore denied.

The Court finds, however, that the City timely filed its notice of appeal from the November 
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30, 2018 interlocutory judgment pursuant to Rule 28.2(a). See TEX.R.APP.P. 28.2(a)(notice of 

appeal must be filed no later than the 20th day after the trial court signs a written order granting 

permission to appeal). Further, the City’s notice and amended notices of appeal and its petition 

satisfy the requirements of Rule 28.2(c). See TEX.R.APP.P. 28.2(c). The Court grants the City’s 

petition for an agreed interlocutory appeal pursuant to Rule 28.2. The Clerk’s Office is directed 

to file the reporter’s record previously received on December 6, 2018. The clerk’s record is due 

to be filed on January 6, 2019. Appellant’s brief on the merits will be due twenty days after the 

clerk’s record is filed.

IT IS SO ORDERED this 27

th day of December, 2018.

PER CURIAM

Before McClure, C.J., Rodriguez and Palafox, JJ.