Texas Animal Health Commission v. Nunley
| Decision Date | 09 April 1980 |
| Docket Number | No. B-8945,B-8945 |
| Citation | 598 S.W.2d 233 |
| Parties | TEXAS ANIMAL HEALTH COMMISSION, Appellant, v. R. J. NUNLEY, Appellee. |
| Court | Texas Supreme Court |
Mark White, Atty. Gen., Carla J. Cox, Asst. Atty. Gen., Austin, for appellant.
Morris Atlas, McAllen, for appellee.
This is a direct appeal. Nunley sued to enjoin Texas Animal Health Commission from enforcing the provisions of Article 7014f-1, § 23A, V.A.C.S. and the Commission's rules and regulations involving Bovine Brucellosis. The trial court held the statute and rules unconstitutional as applied to Nunley.
We must determine if the Commission has given notice of appeal in compliance with Rule 354(c). 1 That rule provides:
When a bond for costs on appeal is not required by law, the appellant shall in lieu of a bond file a notice of appeal which shall be filed with the clerk, within thirty days after rendition of judgment or order overruling motion for new trial (or after such motion is overruled by operation of law.) Such notice shall be sufficient if it state(s) the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment or some designated portion thereof. Copy of the notice shall be mailed by counsel for appellant in the same manner as the mailing of copies of the appeal bond.
The trial court entered judgment adverse to the Commission. Plaintiff Nunley prepared the judgment, approved it as to form, and mailed it to the Commission. The Commission also approved the judgment as to form and then mailed it to the trial judge with a letter requesting: "I would appreciate your adding at the end of the judgment 'to which judgment of the Court, Defendants gave notice of appeal.' " A copy of this letter was sent to Nunley. The trial judge added these words and sent the judgment to the clerk for filing.
The Commission contends that including the notice of appeal in the judgment satisfies the requirements of the rule because: it was filed with the clerk within 30 days of the signing and entry of the final judgment; it states the number and style of the case; the court in which pending; and recites that the defendant gave notice of appeal. The Commission says the final requirement of the rule, notice to opposing counsel, was met because a copy of the letter to the trial judge requesting the notice to be included in the judgment was sent to Nunley.
Rule 354(c) requires that appellants, not required to file appeal bonds, "file a notice of appeal which shall be filed with the clerk." Before January 1, 1976, Rule 353 allowed a notice of appeal to be made "in open court, noted on the docket or embodied in the judgment, order overruling motion for new trial, or other minute(s) of the Court." The Commission contends this is still the rule; if not, another document, not a notice of appeal, can comply with the requisites of the new Rule 354(c), Tex.R.Civ.P. The rules were changed by removing the above language in Rule 353 and amending Rule 354 to require the notice of appeal to be filed separately with the clerk. Attempting to provide notice of appeal in the...
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