COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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IN RE: R. WAYNE JOHNSON, Relator. |
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No. 08-07-00167-CV
AN ORIGINAL PROCEEDING IN PROHIBITION AND MANDAMUS |
M E M O R A N D U M O P I N I O N ON P E T I T I O N F O R
W R I T O F P R O H I B I T I O N A N D M A N D A M U S
R. Wayne Johnson, an inmate proceeding pro se and in forma pauperis, in a single petition seeks relief by writ of prohibition and writ of mandamus. For the following reasons, all relief is denied.
Writ of Prohibition
In his petition, Johnson alleges the trial court should not enter an order dismissing his case because he does not need permission to file suit. According to Johnson, he filed suit against Denise De Shields of Texas Tech University. Johnson sought an injunction against De Shields pursuant to Section 321.002 of the Health and Safety Code and alleged he was denied all medical treatment based on retaliation for the filing of a criminal complaint against all medical staff.
Johnson argues the trial court cannot enter an order that is adverse to him and the trial court is prohibited from entering a void order. Johnson also contends that if the court entered a void order, then this Court could not address the merits of that order. He also alleges an appeal cannot be taken from a void order. In support of his petition for writ of prohibition, Johnson argues the writ should issue to prohibit the trial court from entering an order because: (1) the order would be unconstitutional and void and preclude him from appealing; (2) the original vexatious order was void; (3) entry of the order would be retaliation; (4) the order would contravene the Supremacy Clause; and (5) the trial court has a ministerial duty not to enter the order.
A writ of prohibition is issued by a superior court and operates like an injunction to control, limit or prevent action in a court of inferior jurisdiction. In re Cap Rock Energy Corp., 225 S.W.3d 160, 160 (Tex.App.--El Paso 2005, orig. proceeding), citing Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 682 (Tex.1989). The purpose of a writ of prohibition is so a superior court may protect and enforce its jurisdiction and judgments. Id. The writ is typically used to protect the subject matter of an appeal or prohibit an unlawful interference with the enforcement of a superior court's orders and judgments. Id.
An appellate court may issue a writ of prohibition when necessary to enforce the jurisdiction of the court. See Tex.Gov't Code Ann. § 22.221(a)(Vernon 2004)(each court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court). Additionally, an appellate court's jurisdiction to issue a writ of prohibition is limited to cases in which the court has actual jurisdiction of a pending proceeding. In re Nguyen, 155 S.W.3d 191, 194 (Tex.App.--Tyler 2003, orig. proceeding). Therefore, a court of appeals does not have jurisdiction to issue a writ of prohibition requiring that a trial court refrain from performing a future act absent actual jurisdiction of a pending proceeding. Nguyen, 155 S.W.3d at 194. In this case, Johnson does not have a proceeding pending before this Court, therefore, this Court does not have the jurisdiction to issue a writ of prohibition.
Writ of Mandamus
In support of his petition for writ of mandamus, Johnson argues this Court should issue mandamus to settle the trial court's jurisdiction. According to Johnson, the trial court does not have the jurisdiction to enter an order that is void. Mandamus will lie only to correct a clear abuse of discretion and there must be no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)(orig. proceeding). Based on the petition and record before us, Johnson has failed to show the trial court clearly abused its discretion and that he does not have an adequate remedy at law. See Tex.R.App.P. 52.7(a). Therefore, mandamus relief is denied.
August 9, 2007
DAVID WELLINGTON CHEW, Chief Justice
Before Chew, C.J., McClure, and Carr, JJ.