dissenting.
I concur in certain aspects of the majority’s opinion, but respectfully dissent in others. I concur with the majority in sustaining appellant’s points of error numbers two and four. I do not agree with the majority in overruling points of error numbers one and three and with the affirmance of the trial court.
While I do not question most of the basic legal theories relied upon by the majority, I view the legal implications of the original contract somewhat differently. I find sound authority that mandamus will not lie when there is an adequate remedy at law. Mandamus is an extraordinary remedy and issues only when the party has a right to have something done and has no other way of compelling its performance. Espinoza v. State, 653 S.W.2d 446 (Tex.App. — San Antonio 1982) aff'd, 669 S.W.2d 736 (Tex.Crim.App.1984); Dula v. Bush, 136 S.W.2d 898 (Tex.Civ.App. — Dallas 1939, no writ). A writ of mandamus must be the last resort and will be refused if there is another remedy which is effective and complete. Espinoza, supra; Gonzales v. Stevens, 427 S.W.2d 694 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n.r.e.). Our highest criminal court has stated: “It is axiomatic that actions seeking writs of prohibition and mandamus are extraordinary and those writs are available only to parties illustrating clearly they have no other adequate remedy at law.” Wolff v. Thornton, 676 S.W.2d 128 (Tex.Crim.App.1984).
When looking at the existence of an alternate remedy, one needs to closely examine what the litigation was all about. The complaint of the school district was not that the tax-assessor collector was failing to collect the taxes due the district. This is a governmental ministerial duty only he can perform. Stringer v. Franklin County, 58 Tex.Civ.App. 343, 123 S.W. 1168 (1909, no writ). Failure to do this would be a proper complaint in an application for a writ of mandamus. Here the district was seeking to have the tax assessor-collector perform all the duties the county had contracted to perform. True, some of these duties were statutory, but some were not. The order of the trial court did nothing more than order the tax-assessor to perform those items he had stipulated he had not performed. While mandamus was certainly available as to some of the duties, it was not available to all.
In this instance, the School District had specifically reserved “the right to examine or audit the tax records of the county at its own expense”.1 Mandamus should not be available to one who possesses both the ability and the right to do what he seeks to have done through mandamus. An action for breach of contract, even if an anticipatory breach, was another appropriate alternate remedy and another reason mandamus should not lie. I would reverse the trial court and dismiss the writ of mandamus and contempt order.
. Paragraph VII (5) of the contract.