Tex. St. Bd. of Pharm. v. Gibson's Disc. Ctrs., Inc.

Decision Date23 June 1976
Docket NumberNo. B--5745,B--5745
Citation539 S.W.2d 141
PartiesTEXAS STATE BOARD OF PHARMACY et al., Petitioners, v. GIBSON'S DISCOUNT CENTERS, INC., et al., Respondents.
CourtTexas Supreme Court

John L. Hill, Atty. Gen., David M. Kendall and Robert Gauss, Asst. Attys., Gen., Austin, for petitioners.

Clark, Thomas, Winters & Shapiro, Mary Joe Carroll, Austin, Bardwell D. Odum, Robert E. Rader, Jr., Dallas, for respondents.

REAVLEY, Justice.

The narrow question here is the jurisdiction of the Court of Civil Appeals as a consequence of the appellants indicating by their notice of appeal in the trial court that they would appeal to the Texas Supreme Court. The Court of Civil Appeals has dismissed the appeal for want of jurisdiction. 530 S.W.2d 332. We remand the cause to that Court for a determination of the merits of the appeal.

The judgment of the trial court enjoined Texas State Board of Pharmacy and other defendants from enforcing Tex.Rev.Civ.Stat.Ann. art. 4542a § 20A, subdivisions II(a) and II(d) (1973), related to advertising prescription drug prices. The defendants then filed with the district clerk a notice of appeal, which identified the cause and court and stated that the defendants '. . . hereby give their Notice of Appeal from the amended Judgment entered in this cause on March 10, 1975, to the Supreme Court of the State of Texas.' On the same date and at the same moment the defendants also filed with the district clerk their request for findings of fact and conclusions of law, stating that same should 'be filed with the Clerk of the Court as a part of the record herein within thirty (30) days before the time of filing of the transcript of this cause with the Court of Civil Appeals. . . .'

Defendants took no further action to complete a direct appeal to the Supreme Court. They did file the record, sixty days after judgment, with the Clerk of the Court of Civil Appeals. That Court regarded the notice of appeal as having perfected an appeal to some court; and, since one appellate court must enjoy exclusive jurisdiction, it would have to be the one named in the notice of appeal: the Supreme Court.

The rules do not require the notice of appeal to identify the court to which the appeal is to be taken. Rule 353, Tex.R.Civ.P., as it stood prior to January 1, 1976 required only that the notice of appeal 'state the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment or from some designated portion thereof.' Under the rules as amended on January 1, 1976, only the appellant who is not required to give a bond for costs on appeal is required to give notice of appeal; and under Rule 354(c) the contents of the notice are precisely what was formerly required by Rule 353 and quoted above.

The designation of an incorrect court of civil appeals in the notice of...

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6 cases
  • State Dept. of Highways and Public Transp. v. Douglas
    • United States
    • Texas Court of Appeals
    • February 8, 1979
    ...354(c) the contents of the notice are precisely what was formerly required by Rule 353 . . .," Texas State Board of Pharmacy v. Gibson's Discount Centers, Inc., 539 S.W.2d 141, 142 (Tex.Sup.1976). We therefore turn to the writing which appellant identifies as a written notice of appeal. Thi......
  • Salvaggio v. Brazos County Water Control & Imp. Dist. No. 1
    • United States
    • Texas Supreme Court
    • January 23, 1980
    ...he is also entitled to an appeal by writ of error pursuant to Article 2249a and Article 2255. In Texas State Board of Pharmacy v. Gibson's Discount Centers, Inc., 539 S.W.2d 141 (Tex.1976), the appellant had an option to pursue a direct appeal to this Court or to take an ordinary appeal to ......
  • Texas State Board of Pharmacy v. Gibson's Discount Center, Inc.
    • United States
    • Texas Court of Appeals
    • September 29, 1976
    ...the merits of this appeal. The previous opinions of this Court and that of the Supreme Court appear at 530 S.W.2d 332 (1975), and 539 S.W.2d 141 (1976). This appeal stems from a permanent injunction entered by the district court of Travis County enjoining Texas State Board of Pharmacy and o......
  • Inverness Forest Imp. Dist. v. Hardy St. Inv.
    • United States
    • Texas Court of Appeals
    • July 22, 1976
    ...civil appeals having concurrent jurisdiction of the appeal. This point cannot be sustained. Texas State Board of Pharmacy et al. v. Gibson Discount Centers, Inc., et al., 539 S.W.2d 141 (Tex.1976). The appellees further argue that this appeal should be dismissed because the appellants merel......
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