in Re R. Wayne Johnson ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-032 CV ____________________

IN RE R. WAYNE JOHNSON

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Original Proceeding

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MEMORANDUM OPINION ⁽¹⁾  

R. Wayne Johnson filed a petition for writ of mandamus on January 24, 2005. The relator filed Cause No. 04-07-05628-CV in the District Court of Montgomery County. Johnson contends he filed the suit in Montgomery County in violation of a mandatory venue statute for inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 15.019 (Vernon 2002). The petition seeks relief in the form of an order to the trial court to dismiss the cause for lack of jurisdiction. The trial court dismissed the suit on December 8, 2004, for failure to comply with requirements for suits filed by indigent inmates. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (Vernon 2002). The relator did not file a motion for new trial, but did file notice of appeal on January 3, 2005. Docketed in No. 09-05-004 CV, an active appeal presently exists. The trial court cannot exercise plenary power over the case. See Tex. R. Civ. P. 329b. Exclusive jurisdiction is currently vested in this Court. See Tex. R. App. P. 25.1(b). The merits of that issue may be raised in his appeal.

Accordingly, Johnson is not presently entitled to a writ of mandamus to compel the trial court to dismiss the cause. The petition is therefore denied.

WRIT DENIED.

PER CURIAM

Opinion Delivered February 17, 2005

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. Tex. R. App. P. 47.4.