TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00321-CV

William Alexander Roper, Jr., Appellant

v.

Reagan, Burrus, Dierkson, Lamon & Bluntzer PLLC, Appellee

FROM THE COUNTY COURT OF LAW NO. 2 OF COMAL COUNTY,

NO. 2005PC0102, HONORABLE CHARLES A. STEPHENS II, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

William Alexander Roper, Jr., has filed a notice of appeal from a May 10, 2007 order

of the trial court compelling the dependent administrator of the Estate of Michael G. Roper to pay

attorney’s fees awarded in a previous order. In the prior order, dated March 1, 2006, the trial court,

on application by Reagan, Burrus, Dierkson, Lamon & Bluntzer PLLC (“Reagan Burrus”), had

ordered the dependent administrator to pay approximately $6,200 in attorney’s fees and expenses

incurred through Reagan Burrus’s provision of legal services in connection with the dependent

administrator’s appointment. Reagan Burrus has filed a motion to dismiss Roper’s appeal for want

of subject-matter jurisdiction. Having reviewed the jurisdictional arguments in Roper’s response

to the motion to dismiss and his brief on appeal—we conclude that we lack subject-matter

jurisdiction over the appeal and we grant the motion and dismiss.
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Under the probate code, the underlying March 1, 2006 order awarding Reagan Burrus

fees and expenses was final and appealable. Reagan Burrus’s application for payment was a claim

against the Estate. Section 312(e) of the probate code provides:

Where a claimant or any other person interested in an estate shall be dissatisfied with

the action of the court upon a claim, the claimant or person may appeal therefrom to

the courts of appeals, as from other judgments of the county court in probate matters.

Tex. Prob. Code Ann. § 312(e) (West 2003); see also id. § 312(d) (West 2003) (orders of probate

court on claims “shall have the force and effect of final judgments”). Section 312(e) “has been

interpreted to mean that if an order rendered under section 312 is not appealed, it becomes final and

is not subject to collateral attack.” In re Estate of Figueroa-Gomez, 76 S.W.3d 533, 535-36

(Tex. App.—Corpus Christi 2002, no pet.).

Appellant filed his pro se notice of appeal on June 1, 2007, long after any possibly

applicable deadline to appeal the March 1, 2006 order had lapsed. Generally, an appellant has

30 days to file his notice of appeal from a judgment or order, unless he timely filed a motion for new

trial or motion to modify the judgment, in which case he has 90 days to file his notice of appeal. See

Tex. R. App. P. 26.1(a). In this case, appellant filed, on June 1, 2006, in the same cause, what he

styled a “bill of review” and motion to set aside the March 1 order. Appellant’s instrument

challenged the March 1 order both on the merits and on the basis that appellant was an interested

party who had not been properly served with a copy of Reagan Burrus’s application. No hearing on

this filing was set or held, and the trial court did not take any action on it. Reagan Burrus urges that

appellant’s “bill of review” is actually a mis-styled motion for new trial that was overruled by
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operation of law 75 days after filing, in August 2006. See Caldwell v. Barnes, 154 S.W.3d 93,

96 (Tex. 2004) (explaining that bill of review is an equitable proceeding brought by a party seeking

to set aside a prior judgment that is no longer subject to challenge by new trial motion or appeal);

cf. Taylor v. Hill, No. 03-07-00285-CV, __ S.W.3d ___, ___ (Tex. App.—Austin, Feb. 15, 2008,

no pet. h.) (“We first observe that Taylor filed his ‘Motion to Declare Judgment Void Due to Lack

of Subject-Matter Jurisdiction’ in the same underlying proceeding, and it amounts to an untimely

motion to set aside the June 2003 judgment.”). We agree. In any event, appellant’s “bill of review”

to challenge the March 1, 2006 order, even if pending, would not confer on us subject-matter

jurisdiction to consider the order appellant attempts to challenge here.

On February 13, 2007, Reagan Burrus filed a motion to compel payment of the

attorney’s fees that the trial court had previously awarded in its March 1, 2006 order. On May

10, the trial court granted the motion. It is from this order that appellant purports to appeal.

Our appellate jurisdiction is limited to final judgments and those limited classes

of interlocutory orders over which the legislature has given us jurisdiction. Majeski v. Estate

of Majeski, 163 S.W.3d 102, 105 (Tex. App.—Austin 2005, no pet.) (citing Stary v. DeBord,

967 S.W.2d 352, 352-53 (Tex. 1998)). As Roper acknowledges in his docketing statement, the

May 10, 2007 order compelling payment of attorney’s fees is interlocutory. See Wagner

v. Warnasch, 295 S.W.2d 890, 893 (Tex. 1956) (“[A]n order or decree, made for the purpose of

carrying a judgment or decree already entered into effect, is not a final judgment or decree,

and cannot be appealed from as such.”). Statutes authorizing appeals from interlocutory orders

are strictly construed. Art Inst. of Chicago v. Integral Hedging, L.P., 129 S.W.3d 564, 570
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(Tex. App.—Dallas 2003, no pet.). In probate proceedings, section 51.014(a) authorizes appeals

from an interlocutory order that appoints a receiver or trustee or overrules a motion to vacate an

order that appoints a receiver or trustee. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(1), (2)

(West 1997 & Supp. 2007). Section 51.014(a) does not authorize an appeal from an interlocutory

order compelling payment of previously awarded attorney’s fees. See Integral Hedging, L.P.,

129 S.W.3d at 573.

In summary, Roper did not timely perfect an appeal from the trial court’s March

1, 2006 order and we do not have jurisdiction to consider Roper’s appeal from the trial court’s May

10, 2007 interlocutory order. Accordingly, we dismiss this appeal for want of jurisdiction. See

Tex. R. App. P. 42.3(a).

____________________________________________

Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Dismissed for Want of Jurisdiction

Filed: March 18, 2008