TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
In re Paul West Kimmell
The state constitution describes this Court's jurisdiction as follows:
Said Court of Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. . . . Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.
Tex. Const. art. 5, § 6. The constitution permits the legislature to "confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State." Id. art. 5, § 3. The legislature has done so. See Tex. Gov't Code Ann. § 22.002(a) (West 1998).
Three statutes further detail this Court's jurisdiction. Texas Government Code § 22.220 provides:
- Each court of appeals has appellate jurisdiction of all civil cases within its district of which the district courts or county courts have jurisdiction when the amount in controversy or the judgment rendered exceeds $100, exclusive of interest and costs.
- If a court of appeals having jurisdiction in a case, matter, or controversy that requires immediate action is unable to take immediate action because the illness, absence, or unavailability of the justices causes fewer than three members of the court to be present, the nearest available court of appeals, under rules prescribed by the supreme court, may take the action required in the case, matter, or controversy.
- Each court of appeals may, on affidavit or otherwise, as the court may determine, ascertain the matters of fact that are necessary to the proper exercise of its jurisdiction.
Tex. Gov't Code Ann. § 22.220 (West 1988). Texas Government Code section 22.221 states:
- Each court of appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court.
- Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a:
- judge of a district or county court in the court of appeals district; or
- judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district.
- Repealed by Acts 1987, 70th Leg., ch. 148, § 2.03, eff. Sept. 1, 1987.
- Concurrently with the supreme court, the court of appeals of a court of appeals district in which a person is restrained in his liberty, or a justice of the court of appeals, may issue a writ of habeas corpus when it appears that the restraint of liberty is by virtue of an order, process, or commitment issued by a court or judge because of the violation of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case. Pending the hearing of an application for a writ of habeas corpus, the court of appeals or a justice of the court of appeals may admit to bail a person to whom the writ of habeas corpus may be granted.
Id. § 22.221. Texas Code of Criminal Procedure article 4.03 provides:
The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.
Tex. Code Crim. Proc. Ann. art. 4.03 (West Supp. 2001).
Most of Kimmell's requested relief emanates from his contention that District Judge Guilford Jones, District Clerk Kathy Barrow, and Burnet City Attorney Mahon B. Garry, Jr. were not authorized to act as they did in the district court because they have not taken the prescribed oath of office from a person authorized to administer oaths. He requests both criminal and civil proceedings.
We lack the power to conduct the criminal proceedings that Kimmell requests. Kimmell inquires whether Barrow's filing of the judgment constituted fraud or collusion with the other actors, whether such fraud or collusion should be prosecuted by the attorney general or the state attorney, and whether subpoenas or arrest warrants should be issued. We do not have the power to resolve these issues. Our criminal jurisdiction is appellate--the review of trial records created in trial courts. See Tex. Code Crim. Proc. Ann. art. 4.03. We have no original criminal jurisdiction. We are without authority to indict persons, direct prosecutions, or conduct trials. We deny Kimmell's requested relief in the criminal arena.
Likewise, much of the relief Kimmell requests in the civil side is beyond our power. He questions the legality or validity of the pleadings filed by Garry, the judgment signed by Jones, or the entry of the judgment into a record by Barrow. These issues, which arise from his concerns over their authority to act as public officials, are properly the subject of a quo warranto proceeding to determine their authority. As set out above and in our opinion in In re Kimmell, No. 03-01-00334-CV (Tex. App.--Austin, June 29, 2001), we do not have original jurisdiction over proceedings seeking a writ of quo warranto. We therefore deny all relief requested related to the challenge to the authority of the judge, clerk, or city attorney.
We have the power to resolve some issues raised or relief requested by Kimmell, but must do so in the context of the larger appeal, not this original proceeding within the appeal. Whether the judgment is reversible because Kimmell did not receive notice of the dismissal hearing is an appellate issue. Similarly, the effect of the style of the judgment or the capitalization of words within the judgment are subjects for appeal, not this original proceeding. We will not further address such relief within the context of this original proceeding.
We deny all relief by which Kimmell seeks to prompt a criminal prosecution or a determination that the specified officials in the city and county of Burnet are improperly sworn into office. Accordingly, we deny Kimmell's request that we join persons to this suit, assess a penalty, or issue a writ of execution.
We reserve for resolution on appeal the issues relating to notice of the hearing, the appearance of the dismissal order, or any other issues Kimmell wishes to raise regarding the merits of the dismissal order; this cause remains open for consideration of those issues. We cannot consider those issues, however, without a clerk's record. Unless Kimmell pays for the clerk's record by August 20, 2001, we will dismiss this appeal for want of prosecution.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Yeakel and Patterson
Filed: August 9, 2001
Do Not Publish
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The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.
Tex. Code Crim. Proc. Ann. art. 4.03 (West Supp. 2001).
Most of Kimmell's requested relief emanates from his contention that District Judge Guilford Jones, District Clerk Kathy Barrow, and Burnet City Attorney Mahon B. Garry, Jr. were not authorized to act as they did in the district court because they have not taken the prescribed oath of office from a person authorized to administer oaths. He requests both criminal and civil proceedings.
We lack the power to conduct the criminal proceedings that Kimmell requests. Kimmell inquires whether Barrow's filing of the judgment constituted fraud or collusion with the other actors, whether such fraud or collusion should be prosecuted by the attorney general or the state attorney, and whether subpoenas or arrest warrants should be issued. We do not have the power to resolve these issues. Our criminal jurisdiction is appellate--the review of trial records created in trial courts. See Tex. Code Crim. Proc. Ann. art. 4.03. We have no original criminal jurisdiction. We are without authority to indict persons, direct prosecutions, or conduct trials. We deny Kimmell's requested relief in the criminal arena.
Likewise, much of the relief Kimmell requests in the civil side is beyond our power. He questions the legality or validity of the pleadings filed by Garry, the judgment signed by Jones, or the entry of the judgment into a record by Barrow. These issues, which arise from his concerns over their authority to act as public officials, are properly the subject of a quo warranto proceeding to determine their authority. As set out above and in our opinion in In re Kimmell, No. 03-01-00334-CV (Tex. App.--Austin, June 29, 2001), we do not have original jurisdiction over proceedings seeking a wr