### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00135- CV

Ray Wolbrecht, A ppellan t

v. Austin Com m uni ty College District P ubl ic F acility Corporat ion an d Austin Com m uni ty College District , Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0444 1, H ONO RAB LE GISELA D. TRI ANA-DO Y AL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Ray Wolbrecht filed suit in Hay s County ag ainst the Austin Communi ty College District (the “District”) and Austin Communi ty College Distri ct Public Fa cility Corporation (the “Public Fa cility Corporation”) (collec tively , “ACC”) challeng ing an annexation elec tion. Wol b r e c h t’ s s u it w a s c o n s o lidated with an expedited decla ratory judgme nt action for bond validation that was filed by ACC in Travis County

. After the two case s wer e consolidated, the Travis County district court order ed Wolbrecht to post a secur ity bond. After Wolbrecht failed to post a bond, the district court dismiss ed him from the case . Wolbrecht perf ecte d this appea l from the dismiss al order but complains only that the district court err ed by consolidating the two s u its. We will dismiss Wolbrecht’s appe al.F ACTUAL AND P ROCEDURAL BACK GR OUND
I n a N o v e mb e r 2 0 1 0 e le c ti o n , v o te r s a pproved annexing the are a constituting the Hay s Consolidated I ndepende nt School District into the District’s taxi ng jurisd i ct i o n . Wolbrecht sued ACC, asser

ting that it had not fulfilled statutory prer equisites for placing the annexation measure on the ballot. See Tex. Educ. Code Ann. § 130.065 (West 2002). I n response , ACC filed a bond

1 validation suit in Travis County pursuant to the Ex pedited Dec lara tory J udg ment Act (EDJA). See
Tex. Gov’t Code Ann. §§ 1205.001-.152 (West 2000). ACC reque sted expedited d ec l ar at ory judgme nts reg arding (1) the validity and leg ality of the annexation e lection, (2) the Public Fac ility Corporation’s authority to issue bonds for constructing a Hay s County campus, (3) the leg ality and validity of bonds for the Hay s County campus, (4) aff irmation of the District’s boundarie s following the elec tion, and (5) the leg ality and validity of bond documents and actions taken in connec tion with the bonds an d re v en ues pledg ed to secur e them. I n addition, ACC soug ht court order s (1) consolidating Wolbrecht’s suit with ACC’s bond validation suit, see id. §§ 1205.025, .061, and (2) requiring Wolbrecht to post a secur ity bond to cover any damag es or costs ACC might incur as

a re sult of Wol brec ht’s continuing opposition in the ca se. See id. §§ 1205.101-.104.

Pursuant to gove rnment code section 1205.061(b), the Travis County district court signe d an order in J anuar y 2011 consolidating Wolbrecht’s Hay s County suit into ACC’s Travis County suit. Shortly there afte r, the trial court order ed Wolbrecht to post a secur ity bond, set the

I n its brief, ACC states that Wolbrecht’s First Amended Petition also reque sted that ACC 1 be enjoined from issuing bonds. ACC attache d a copy of Wolbrecht’s First Amended Petition to its brief. Although Wolbrecht does not dispute thi s as sertion, the amende d petition on which ACC relies is not part of

the appe llate re cord. 2bond am o u n t at $3 milli on, and order ed Wolbrecht to post the bond within eleve n day s or be

dismiss ed fr om the case

.

After Wolbrecht failed to post a bond, the district court dismiss ed him from the case . This appea l followed.

STANDARD OF REVIEW

We use the de novo standard to revie w questions of law, including issues of statutory construction. State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006). When construing a statute, we first examine statutory lang uag e to deter mine leg islative intent from the plain meaning of the words chosen. Id. I f a statute is c lear and unambig uous, we must apply the s tatute’s words acc ording to their common meaning without resor ting to rules of construction or extrinsi c aids. Id. We may also deter mine leg islative intent by considering the objective of the law, the law’s his t o ry , and the
conseque nces of a particula r construction. Id. I f a statute’s meaning is unclea r, we rea d the statute

as a whole and g ive eff

ect to ever

y part in our interpre tation. Phillips v. Bramlett , 288 S.W .3d 876, 880 (Tex. 2009).

DISCUSSIO N

Although Wolbrecht’s appea l is from the district court ’s d i s m issal order , he challeng es only that court’s interlocutory order consolidating his case with ACC’s case . I n his notice of appea l, Wolbrecht asser ts that he is “see king to alter the trial court’s judgme nt or other appea lable order ,” that the “

judgme nt or order

appea led from wa s signe d on Fe bruar y 3rd, 2011,” a

nd that he “desire s to appea l the Orde r g ranting the ‘ Order on Motion to Dismiss ’ si g ned on said date.” The

3rec ord befor e this Court includes neither an order signe d on Fe bruar y 3, 2 0 1 1 , n or an order on motion to dismiss

. I n a document labeled “F inal J udg ment” signe d on Fe bruar y 22, 2011, howeve r, the trial court acknow ledg ed the prior dismiss al of Wolbrecht’s suit. There , the trial court stated that “cla ims and cause s of action asser ted by Ray W o l b rec ht (which wer e consolidated into this
proce eding by Orde r dated J anuar y 11, 2011) wer e dismiss ed on Fe bruar y 3, 2011, for failure to post the bond re quired by

the Court pursuant to Tex. Gov’t Code §§ 1205.101-1205.103.” Wolbrecht’s case wa s co nsolidated with ACC’s suit pursuant to g overnme nt code section 1205.061(b) , which provide s:
(b) The c ourt may : (1) order a joint trial on all issues pend ing in any other proce eding in a co u rt in this state and the consolidation of the proce eding with th e action under

this chapter; a

nd (2) issue nece ssary or proper order s to eff ect the consolidat ion that will avoid unnece ssary

costs or dela

y s or a multiplicity

of proc eeding s. (c) An interlocutory

order issued under this sec tion is final and may not be appe aled.
Tex. Gov’t Code Ann. § 1205.061.

I n his brief, Wolbrecht states that he is “asking the court to find an abuse of discretion based upon the fac e of the pleading s” beca use “[n] o rec ord was made of the orig inal consolidation hear ing.” Wolbrecht contends that he “did not waive the making of a rec ord” and that “no repor ter

was instructed by the court to cre ate a rec ord” of that hear ing. Acc ording ly , Wolbrecht arg ues that the trial court er red beca

use “the fac e of the pleading s indicate that the Election Contest met no

cr i t eria for consolidation” under g overnme nt code section 1205.061. He further contends t h at

4“[a]ll owing courts to consolidate Election Contests with Bond Validation suits deprive s all but the

wea lthiest citiz ens of the r ight to conte st elections.”

I n chall enging the consolidation order , Wolbrecht does not complain of the trial court’s order requiring him to post bond, nor does he complain about the amount of the bond. I t is undisputed that he failed to post the require d bond. Gover nment code section 1204.104(a) provides 2 that “[t] he court shall dismiss an opposing party o r i n t er v enor who does not file a require d bond befor e the 11th day afte r the date of the entry of the order sett i n g the amount of the bond.” Id. § 1204.104(a) (West 2000). I n a rec ent case addre ssing the EDJA, this Court rec og nized that when

a bond has not been posted as require d, a court does not have jurisdiction to consider appellate issues bey ond those rela ting to the secur ity bond require ment. See Hotz e v. C i t y o f Houston , Nos. 03-10-00423-CV, 03-10-00433- CV, 03-10-00497- CV, 2011 WL 1562910, at *8 (Tex. App.—Austin Apr. 22, 2011, no pet.). There , we stated that “fa ilure to post the secur ity bond trig g ere d an EDJA provision that expli citly limit s our jurisdiction to consider” other issues prese nted

on appea l. Id. The provision re fer red to is g overnme nt code se ction 1205.105(c) , which provides in pertinent par

t:
(c) I f an appea l is not taken or if the app ea l i s t ak en and the order of t he lower court is aff

irmed or aff

irmed as modified, and the require d bond is not posted befor e the 11th day afte r the date of the entry of the appropr iate order , no

Gover nment code section 1205.068 is titled “Appe als” and section 1205.10 5 i s t itled 2 “Appe al.” Neither section expressly addre sses consolidation order s. Section 1205.068(a) provides that “any party to an action under this chapte r may appea l

. . . (1) an order enter ed by the trial court under Section 1205.103 [Amount of Bond] or 1205.104 [Failure to File Bond]; or (2) the judgme nt rende red by the trial co u rt .” Tex. Gov’t Code Ann. § 1205.068(a) (West 2000). Although Wolbrecht’s brief does not specific ally ref ere nce any of these other sections, we note that he appea ls from a dismissal order

resulting from his failure to post a secur ity bond.

5court has further jurisdiction over any action to the extent it involves an issue that was or c ould have be en ra ised in the ac tion under this chapter

. . . .

Tex. Gov’t Code Ann. § 1205.105(c) (empha sis added)

. We held in Hotze that “the EDJA’s secur ity bond provisions apply to both trial and appellate proce eding s.” 2011 WL 156910, at *5. Although the fore g oing provision does not prec lude an appellate challeng e to issues rela ted t o the secur ity bond, Wolbrecht makes no such challeng e in the prese nt case . I nstead, he complains only about the interlocutory consolidation order

. I n the absenc e of a timely posted bond, we lack jurisdiction over such a c omplaint.

We also lack jurisdiction in this appea l for another rea son. The consolidation order of which Wolbrecht complains was an interlocutory order issued pursuant to g overnme nt code

s ec tion 1205.061(b). Gover nment code section 1205.061(c) , howeve r, provides that “[a]n interlocutory

order issued under this sec tion is final and may not be appealed.” Wolbrecht’s brief does not disc uss this part of se ction 1205.061 or otherw ise dispute this bar to his appea l. Be cause Wolbrecht complains only about the trial court’s interlocutory consolidation order and beca use that order is final and not appe alable, w e lac k jurisdiction over this appea l for that additional re ason.

CONCLUSION Be cause Wolbrecht complains only of an interlocutory order that is fi n al and not
appea lable, and beca

use he has failed to post the require d bond, we lack jurisdiction over his appea l. Acc ording ly , we dismiss this appeal for w ant of jurisdiction.

6____________________________________________ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Dismissed for Want of J urisdiction Filed: Jul y

27, 2011

7