COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

M E M O R A N D U M O P I N I O N

Pending before the Court is the Appellee's motion to dismiss the appeal pursuant to Tex. R. App. P. 42.3, which states:

Under the following circumstances, on any party's motion--or on its own initiative after giving ten days' notice to all parties--the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal:

(a) for want of jurisdiction;

(b) for want of prosecution; or

(c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.

Tex. R. App. P. 42.3.

On March 6, 2003, this Court denied relief in a petition for mandamus in Cause No. 08-03-00038-CV. See In Re: Pindome Corporation, No.08-03-00038-CV (Tex. App.--El Paso March 6, 2003, n.w.h.). This restricted appeal arises out of the same judgment. As noted in footnote 1 of the Court's opinion, the denial of the mandamus relief effectively renders the restricted appeal moot. Id. at fn.1. However, the Court declined to dismiss the restricted appeal until the parties filed a motion to dismiss or until any challenges to the denial of relief had been resolved. Id. Appellee has now filed a motion to dismiss for lack of jurisdiction. Appellants filed a response, in which they did not object to the dismissal of this restricted appeal, but requested that the Court find the judgment below was not final to avoid Appellee's filing a writ of mandamus with the Texas Supreme Court attacking the ruling in 08-03-00038-CV. Accordingly, we find that the judgment rendered below was not a final judgment and that this Court lacks jurisdiction to hear the restricted appeal. Pursuant to Tex. R. App. P. 42.3(a), we grant Appellee's motion to dismiss and dismiss the appeal for want of jurisdiction.

June 5, 2003

_______________________________________

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.