Petition for Writ of Prohibition and Mandamus Denied and Memorandum Opinion filed August 4, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-05-00792-CV
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IN RE AMERICO ENERGY RESOURCES, LLC, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
AND PROHIBITION
M E M O R A N D U M O P I N I O N
On August 4, 2005, relator filed a petition for writ of prohibition and mandamus in this court. See Tex. Gov=t. Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52. Relator also filed motions for emergency relief and for expedited consideration.
This proceeding arises from two underlying actions. The first was a declaratory judgment action filed by real party in interest, the State of Texas, seeking a declaration that relator did not own property rights in certain natural gas pipelines located where the State is constructing the Tomball Bypass. Honorable Sharolyn Wood, judge of the 127th District Court, signed an order on May 6, 2005, granting the State=s motion for summary judgment and granting a declaratory judgment in favor of the State. Relator filed its notice of appeal on June 6, 2005. The appeal was assigned to the First Court of Appeals. On July 20, 2005, the Supreme Court issued an order, transferring the appeal to the Thirteenth Court of Appeals, in the interest of docket equalization.[1]
Relator filed a motion to enforce suspension of judgment, seeking an order that the May 6, 2005, judgment was suspended pending appeal. The trial judge denied this motion by order signed on July 25, 2005. Relator asks that we issue a writ of mandamus finding that the trial court abused its discretion in denying the motion to suspend enforcement of the judgment. Relator also seeks a writ of prohibition to prohibit the State from destroying the subject matter of the declaratory judgment before the appeal is heard.
The second underlying proceeding was filed by the State on July 29, 2005. The State filed a petition for temporary restraining order and temporary and permanent injunctive relief. The State asked the trial court to restrain and enjoin relator from continuing to transport hydrocarbons or petroleum products or other substances through pipelines traversing the State=s Tomball Bypass Project. The petition was heard by Honorable Patricia Hancock of the 113th District Court. After a hearing, Judge Hancock issued an order on July 29, 2005, granting the temporary restraining order and setting the temporary injunction for a hearing on August 12, 2005, before Judge Wood. Because the proceeding has been returned to the 127th District Court for further hearing, relator asks that we grant a writ of mandamus, finding that the judge abused her discretion in granting the July 29, 2005, temporary restraining order.
Our jurisdiction to consider and issue writs is governed by statute. See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004). Subsection (a) provides that each court of appeals may issue a writ of mandamus and all other writs necessary to enforce the court=s jurisdiction. Id. at ' 22.221(a). Subsection (b) allows a court of appeals to issue all writs of mandamus against a Ajudge of a district or county court in the court of appeals district.@ Id. at ' 22.221 (b)(1) (emphasis added). Thus, we may issue writs of mandamus and writs other than mandamus, if necessary to enforce our jurisdiction. Id. at ' 22.221(a). This portion of the statute does not limit issuance of writs to only judges in a court of appeals district. Id. Additionally, the statute allows us to issue writs of mandamus, even when not necessary to enforce our jurisdiction, but only against a judge in our court of appeals district. Id. at ' 22.221(b)(1).
Because the appeal is not pending in this court, relator is unable to establish that issuing writs of mandamus or prohibition is necessary to enforce our jurisdiction. The appeal of the declaratory judgment is pending in the Thirteenth Court of Appeals. Accordingly, the power to issue any writs described in section 22.221(a) lies with that court of appeals.
Despite our lack of jurisdiction to issue a writ of prohibition, this court does have power to issue a writ of mandamus against Judge Wood, pursuant to section 22.221(b) because the 127th District Court is in our court of appeals district. However, relator=s overriding concern in this proceeding is to stop the State from destroying the subject matter of the judgment pending appeal. Although this court has the power to grant mandamus relief, our inability to prohibit any action by the state, renders any relief this court could grant insufficient. The mandamus relief this court could issue would address only the refusal to suspend Judge Wood=s judgment, and would not afford relator the protection it seeks, i.e., stopping the State from destroying the subject matter of the judgment pending appeal.
Because relator has an appeal pending in the Thirteenth Court of Appeals, that court has the power to issue both writs of mandamus and prohibition to protect its jurisdiction by preventing the State from destroying the subject matter of the judgment pending appeal. Tex. Gov=t Code Ann. ' 22.221(a) (Vernon 2004). Thus, unlike this court, the Thirteenth Court of Appeals has the power to grant relator all of the relief it seeks. In Walker v. Packer 827 S.W.2d 833, 840 (Tex. 1992), the supreme court held that mandamus would not issue where there exists a clear and adequate remedy at law, such as a normal appeal. Although relator has no adequate remedy by appeal of the two orders challenged in this proceeding, relator has an adequate remedy by writ of mandamus and prohibition available in the Thirteenth Court of Appeals.
Accordingly, we deny relator=s petition for writ of prohibition and mandamus, as well as relator=s motions for emergency relief and for expedited consideration.
PER CURIAM
Petition Denied and Memorandum Opinion filed August 4, 2005.
Panel consists of Chief Justice Hedges, and Justices Hudson and Seymore.
[1] This case illustrates the problems occasioned by Supreme Court transfers for docket equalization. Our court has encountered this problem before. See In re Sheshtawy, 161 S.W.3d 1, 1 & n. 1 (Tex. App.BHouston [14th District] 2003, orig. proceeding)(appeal transferred to Fourth Court of Appeals and petition for writ of mandamus and injunction filed in Fourteenth Court of Appeals).