COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: Cliff Carlton Rice v. Bryan Collier

Appellate case number: 01-19-00843-CV

Trial court case number: 91507-I

Trial court: 412th District Court of Brazoria County

According to the docket sheet and case summary included in the clerk’s record, the 

trial court signed an order dismissing the above cause on October 2, 2019. Appellant Cliff

Carlton Rice filed a notice of appeal of the trial court’s “order of dismissal” on October 28, 

2019. In their appellate briefing, both parties treat the October 2, 2019 order of dismissal 

as a final order purporting to dismiss appellant’s claims under Chapters 13 and 14 of the 

Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE

§§ 13.001(b)(2) (allowing courts to consider whether “claim has no arguable basis in law 

or in fact” in determining whether action is subject to dismissal as “frivolous or 

malicious”), 14.003(b)(2) (allowing same consideration for dismissal of claims in inmate 

litigation).

Although the clerk’s record and the parties’ briefing suggest the trial court case was 

dismissed pursuant to a final, appealable order dated October 2, 2019, neither the clerk’s 

record filed with this Court on November 15, 2019, nor the first supplemental clerk’s 

record filed on January 3, 2020, contain a copy of any order of dismissal signed by the trial 

court on that date.1 Consequently, on February 4, 2021, this Court ordered the trial court 

clerk to file a second supplemental clerk’s record including the appealed-from order. See 

1 Only the correspondence from the trial court coordinator informing the parties that an order 

of dismissal was signed is included in the clerk’s record and supplemental clerk’s record,

not the order of dismissal itself. This is in contrast to the interlocutory orders dismissing 

the claims against some, but not all, of the defendants under Chapters 13 and 14 of the 

Texas Civil Practice and Remedies Code—namely, the interlocutory orders dismissing the 

claims against Michael Butcher and Bryan Collier.
TEX. R. APP. P. 34.5(a)(5) (instructing that clerk’s record must include “the court’s 

judgment or other order that is being appealed”).

Pursuant to this Court’s order, a second supplemental clerk’s record was filed on 

February 24, 2021. The only order from the trial court included in the second supplemental 

clerk’s record is an Order on Notice of Intent to Dismiss, signed by the trial court on 

October 2, 2019 and filed with the district clerk on October 7, 2019. The second 

supplemental clerk’s record also contains a Certificate of Fact, signed by the district clerk, 

stating that the district clerk has “researched the file and records of cause No. 91507-I” and 

that the “Order on Notice of Intent to Dismiss filed on 10/07/2019 is the appealable order.” 

Contrary to the docket entry and appellate briefing, however, the Order on Notice of Intent 

to Dismiss does not purport to dismiss any claims. Rather, the Order on Notice of Intent to 

Dismiss indicates that the action required by the notice—service on all defendants not yet 

served—“was accomplished by the required date,” and “[t]he case [wa]s therefore 

retained” by the trial court. 

This Court generally has jurisdiction only over appeals from final judgments and 

specific interlocutory orders that the legislature has designated as appealable orders. See 

CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex. 2011); see also TEX. CIV. PRAC. &

REM. CODE § 51.014. The appellate record here contains conflicting information about 

whether there is a final, appealable order that disposes of all issues and all parties, and 

therefore, this Court cannot determine its jurisdiction. See Lehmann v. Har-Con Corp., 39 

S.W.3d 191, 195 (Tex. 2001) (noting general rule that appellate courts have jurisdiction 

only over appeals from final judgments).

Accordingly, we abate the appeal and remand to the trial court for further 

proceedings. The trial court shall conduct a hearing within sixty (60) days of the date of 

this Order at which a representative of the Office of the Attorney General shall be present

in person or via video conference. Appellant, who is pro se, shall also be present for the 

hearing or, if appellant is incarcerated, at the trial court’s discretion, appellant may 

participate in the hearing by closed-circuit video teleconferencing. The court coordinator 

of the trial court shall set a hearing date and notify the parties. The hearing shall be recorded 

by a court reporter or court recorder.

We direct the trial court to:

1) determine whether the October 2, 2019 Order of Notice of Intent to Dismiss

is the order being appealed;

2) clarify whether the trial court meant to dismiss the entire trial court litigation 

against each and every defendant for want of prosecution, and if so, have a 

supplemental clerk’s record filed containing a final, appealable order;

3) if the trial court did not intend to dismiss the entire trial court litigation 

against each and every defendant for want of prosecution, enter written 

findings of fact and conclusions of law to that effect; and
4) if there is a separate final, appealable order, have a supplemental clerk’s 

record filed containing that final, appealable order.

The trial court clerk is directed to file a supplemental clerk’s record containing any 

order referenced above, and any other findings, recommendations, and orders of the trial 

court with this Court no later than seventy-five (75) days from the date of this order. See

TEX. R. APP. P. 34.5(c)(2). The court reporter, or recorder, is directed to file the reporter’s 

record of the hearing within seventy-five (75) days of the date of this order.

The appeal is abated, treated as a closed case, and removed from this Court’s active 

docket. The appeal will be reinstated on this Court’s active docket when the supplemental 

clerk’s record and reporter’s record of the hearing are filed with the Clerk of the Court. The 

Court will also consider an appropriate motion to reinstate the appeal filed by either party, 

or the Court may reinstate the appeal on its own motion. To the extent the trial court 

determines there is no final, appealable order in the underlying trial court litigation, we will 

also consider a motion to dismiss the appeal filed by the parties.

It is so ORDERED.

Judge’s signature: /s Amparo Guerra

Acting individually

Date: April 1, 2021