1 John T. Boyd, Chi ef Ju stice (Ret.), Sevent h Court of Appeals, s itting by

assignment . Tex. Gov ’t Code Ann. §75.002(a)(1) (Vernon Supp. 2002). NO. 07-02-0195 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E OCTOBER 17, 2002

______________________________ JIMMY SW INNEY, DONLEY COUN TY CONSTABLE,

PRECINCT 1 AND 2, APP ELLANT

V. JACK H ALL, INDIV IDUALLY AND AS DONLE Y COUNTY JUDGE, DON HALL, INDIVID UALLY A ND AS DONLEY COUNTY C OMMI SSIONE R, ERNEST JOHNSTO N, INDIVIDUAL LY AND AS DONLEY COUNTY COMMISSIONER, HENRY “BUST ER” SHIELDS, IND IVIDUALLY AND AS DONLEY

COUNTY C OMMI SSIONE R, BOB TROUT, INDIV IDUALLY AND AS DONLEY COUNTY COMMISSIO NER, AND DONLEY COUNT Y, TEXAS, APPELLEES

_________________________________ FROM THE 100 TH DISTRICT COURT OF DONLEY COUNT Y; NO. 5890; HON ORABLEDAVIDM. M CCOY, JU DGE

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, SJ. 12

Ji mmySw inney (S winne y) brings this appe al froma sum m aryjudgm ent dismissing his claims against appellees Jack H all, the County Judge of Donley Co unty, each m ember of the Donley County C omm issioner’s Court in their individual and official capacities, and Donley County. In his suit, Swinney sought declaratory relief, ma ndamu s and dam ages arising from his service as constable in Donley County P recinc ts 1 and 2 . For reasons hereinafter stated, we dismiss the appeal for want of jurisdiction.
In 1999, Sw inney was elected by a write-in vote to the long vacant of fice of Con sta ble for Donley County P recincts 1 an d 2. Histerm of office began on January 1 , 2001. Bas ed upon research done by them , the Com missioner’s C ourt set a budget of app rox im ate ly$5,000 for the operation of S winney’s off ice. Being di ssatisfied with the
amoun tallocated, on June 19, 2001, Swinney fi led the sui t givin g rise to this appeal. In the suit, he sought declarations that, int er alia , th e sa la ry set fo r t he po si ti on wa s not reasonab le as a m atter of law, theCom missioner’s C ourt had a m inisterial duty to set a reasonable salary, they had failed to do so, and under s ection 87.011(2)(B) of the Local Governm entCode, the court was guil ty o f gro ss car eles sne ss in th e dis cha rge of t heir duties, and the defendants were jointly and several ly li able for hi s attorney’s fees. He al so soughta w rit

of m andam us direct ing the C om m issioner’sCourt to set areasona ble salary for his posi tion, and aske d for back pay based on that reasonabl e salary.
In their June 29, 2001 a nswers, appellees asserted general denials and raised affirmative defenses of official and sovereign im munity. On that sam e day, County J udge3

Jack Hal l and Com missioners Don Hall and Bob Trout filed a joint m otion seek in g sum m aryjudgm ent, as did Co m m issionersBuster Shields and Ernes t Johnston. A lthough separate, both m otions alleged grounds that were bas ically the sam e. How ever, in t heir mot ion, Shields and Johnston additionally argued they were not proper parti es because theyhad n ot been mem bers of the Com missioner’s C ourt when t he budget was set. Swinney also filed a motion seeking a part ial summary judgm ent on the comm ission ers’ duty to set a reaso nable salary for his office.
Because of his failure to obtain the required Tex as P eace Of

fice r lice nsew ithin 270 days of taking office, Sw inney resigned as constable on Septem ber 29, 2001. See Texas Local Gov’t Code A nn. § 86.0021(b) (Vernon 1999). On January 31, 2002, the trial court denied Sw inney’s m otion seeking partial summ ary judgm ent and granted the m otions for
sum m aryjudgm ent of “Jack Hall, individu ally and as Don ley C oun ty J udg e, D on H all individually and as

Donley C ounty C om m issioner, Bob Trout, individually and as Donley County Com missioner, Henry “Buster” Shi e lds, individual ly and as Donley County Com missioner, Ernes t Johnston [sic], individually and as DonleyCounty Com m issioner, and Donley County, Tex as.”
Initiall y, we note that even if the quest ion is not raised by the par ties , th is c our

t is obligated sua sponteto determ ine its jurisdiction to hear this appeal. Welch v. McDougal, 876 S. W.2d 21 8, 2 20 ( Tex .A pp. --A m arillo199 4, writ d enie d). It is ax iom atic

tha t in order to be final and appeal able, a judgment must dispose of all issues and parties in the case.4

Lehmann v. Har-Con Corp. , 39 S.W.3d 191 (Tex. 2001). Before we can d iscuss the issues raised by the parties, we m ust first determ ine whether the trial court’s order, which purports to grant summ ary judgment for all defenda nts, is a final judgm ent for purposes of app eal,
even though Donley County, one of the parties for w hom judgm ent is rendered, did n ot f ile
a m otion seeking the judgm ent.
In a supplemental brief and at oral argument, appellees argued the judgm ent was final and app eala ble because 1) the cour t’s order expressly nam es each defendant, 2) b y bringing this appeal, appell ant has waived any challenge to the finality of the orde r, and 3) the parties have treated the order a s a final judgm ent.
In Lehmann, the court reviewe d the requirements for a j udgme nt to be final and appealable. In doin g so , it reco gnized and reiterated the rule that no presum ption of finality m ay b e ind ulge d in favor of j udgme nts not tried on the m erits. 39 S.W.3d at 200, 204. In the course of its discussion, the Lehmann court expres sly considered instances in whic h a trial cou rt gavem ore relief than requested and held that such error “make s the order reversible, but not

interlocuto ry.” Id. at 204. Under that teaching, even though it was granted without being requested, if it m etoth er n ece ssa ry r equ irem ents tobe f

inal, it c ould be r eview ed o n ap pea l.
While it is true that a final summ ary judgm ent m ay undergo imm ediate appellate
re vi ew, to be considered final, it must satisfycertain criteria. Of those criter ia, the most2 That is, the m ere declaration thata sum m ary j udgm ent is ren dered w ithout m ore

specifi city as to the di spositi on of the contenti ons of the parti es. 5 important is the nee d for the rendition of an actual judgm ent. The decretal portion of the judgm ent reads as fol lows: Therefore, it is ORDERED, ADJUDG ED ANDDECRE ED that theMotion for Sum m aryJudgment of Defendants, Jack Ha ll, Individually and as Donley County Judge, Don H all, Individually an d as Do nley Coun ty Com m issioner, Henry “Buster” Shields, Individually an d as Do nley Coun ty Com m issioner, Ernest Joh nston, Ind ividu ally and as Donley County C omm issioner, and Donley County, T exas, be and is hereby GRANTED. Costs. All costs of court in this cause, all attorney’s fees and all other costs are adjudged ag ainst the party by w hom incurred.
In Chandler v. Reder

, 63 5 S .W.2d 8 95 ( Tex .A pp. --A m arillo1982, no writ), and Disco Machine of Liberal

Co. v. Pay

ton , 900 S.W.2d 71 (Tex .App. --Am arillo 1995, w rit denied),
we had occasion to consider sum mary judgm ents with sim ilar decretal provisions. In Disc o, we noted that such declarations 2 “are nothing more than an indication of the trial court’s decision vis- a- vis the m otions fo r sum m aryjudgm ent. It doesnot ex pre ss a sp ecif

ic settlement

of rights bet ween the parties. Itdoe s no t dis clos e th e sp ecif ic an d fin al re sult off icial lycondon ed by an d recogn ized under the law .” Id. at 74. As w e did in the preceding two cases, we can only hold that in the absence of the rendition of a c ogn izab le fina l j udg m ent , th is c our t ha s noj uris dict ion o ver theapp eal. Accordingly, the appeal m ust be, and is hereby, dism issed.6 John T. Boyd Senior Justi ce Do not publish.