in Re: Daniel Pearson ( 2015 )


Menu:
  •                                                                                               ACCEPTED
    05-15-01462-CV
    05-15-01462-cv                                   FIFTH COURT OF APPEALS
    DALLAS, TEXAS
    12/1/2015 3:20:15 PM
    LISA MATZ
    CLERK
    NO.                          __
    RECEIVED IN
    5th COURT OF APPEALS
    DALLAS, TEXAS
    12/1/2015 3:20:15 PM
    LISA MATZ
    IN THE                               Clerk
    FIFTH COURT OF APPEALS
    DALLAS, TEXAS
    FILED IN
    5th COURT OF APPEALS
    COUNTY COURT AT LAW NO. 3                       DALLAS, TEXAS
    12/1/2015 3:20:15 PM
    LISA MATZ
    Clerk
    In Re Daniel Pearson
    Original Proceeding From the County Court at Law No. 3 of Dallas County, Texas
    PETITION FOR WRIT OF INJUNCTION
    Kathy Roux
    Law Office of Kathy Roux
    P. O. Box 1701
    Grapevine, TX 76099
    Tel.: (817) 874-8877
    Fax: (877) 878-5884
    Email: kathy@kathyrouxlaw.com
    Texas State Bar Number 24054141
    ATTORNEY FOR RELATOR
    ORAL ARGUMENT REQUESTED
    NO.                          __
    IN THE
    FIFTH COURT OF APPEALS
    DALLAS, TEXAS
    COUNTY COURT AT LAW NO.3
    In Re Daniel Pearson
    Original Proceeding From the County Court at Law No.3 of Dallas County, Texas
    PETITION FOR WRIT OF INJUNCTION
    Kathy Roux
    Law Office of Kathy Roux
    P. O. Box 1701
    Grapevine, TX 76099
    Tel.: (817) 874-8877
    Fax: (877) 878-5884
    Email: kathy@kathyrouxlaw.com
    Texas State Bar Number 24054141
    ATTORNEY FOR RELATOR
    ORAL ARGUMENT REQUESTED
    IDENTITY OF PARTIES AND COUNSEL
    The following is a complete list of all parties, as well as the names and addresses of all
    counsel.
    PARTIES                                              COUNSEL
    Relator:
    Daniel Pearson                                       Kathy Roux
    P. O. Box 1701
    Grapevine, TX 76099
    Respondent:
    Joseph Kemp, As Administrator of the Estate          Zachary Johnson
    of Lou Bertha Brooks, Deceased                       500 N. Akard Street, Suite 2150
    Dallas, Texas 75201-3302
    Real Party in Interest:
    Sharunda King                                        Pro Se
    Jastasia King                                        Pro Se
    Occupants                                            Pro Se
    II
    TABLE OF CONTENTS
    IDENTITY OF PARTIES AND COUNSEL                                                  ii
    INDEX OF AUTHORITIES                                                             iv
    STATEMENT OF THE CASE                                                            v
    STATEMENT OF JURISDICTION                                                        vi
    ISSUES PRESENTED                                                                 vi
    STATEMENT OF FACTS                                                                1
    ARGUMENT AND AUTHORITIES                                                          1
    PRAYER                                                                           3
    CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.30)                             .4
    CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i)                             .4
    CERTIFICATE OF SERVICE                                                           4
    APPENDIX                                                                         5
    A - Trial court's fmaljudgment   signed November 20, 2015                   5
    B - Daniel Pearson's Notice of Appeal.                                      9
    C - Joseph Kemp's Request for Writ of Possession filed November 30, 2015   .12
    D -Pace v. McEwen, 
    604 S.W.2d 231
    (Tex.Civ.App.-San Antonio 1980)          14
    iii
    INDEX OF AUTHORITIES
    CASES                                                                             Page
    Baptist Med Ctr. V Gonzalez, 
    33 S.W.3d 821
    , 822 (Tex.2000)                           3
    Briones v. Brazos Bend VillaApts. , 
    438 S.W.3d 808
    ,812-813
    (Tex.App.-Houston [14th District] 2014, no pet.)                                   1, 2
    EMW Mfg. Co. v. Lemons, 
    724 S.W.2d 425
    (Tex.App.-Fort Worth 1987)                    3
    In Re Gruebel, 
    153 S.W.3d 686
    (Tex.App.-Tyler 2005)                                  3
    Kemper v. Stonegate Manor Apartments Ltd, 
    29 S.W.3d 362
    ,363
    (Tex.App.-Beaumont 2000, pet. dism'd w.o.j.)                                         2
    Madison v. Martinez, 
    42 S.W.2d 84
    ,86 (Tex.Civ.App.-Dallas 1931, writ ref d)          .2
    Marshall v. Housing Authority of City of San Antonio, 
    198 S.W.3d 782
    (Tex.2006)      2
    Pace v. McEwen, 
    604 S.W.2d 231
    (Tex.Civ.App.-San Antonio 1980)                     2, 3
    Wilhelm v. Fed Nat'/ Mortgage Ass'n., 
    349 S.W.3d 766
    , 768-769
    (Tex.App.-Houston [14thDistrict] 2011, no pet.)                                      2
    TEXAS CONSTITUTION, STATUTES, AND RULES
    Texas Government Code §22.221                                                     vi, 3
    Texas Rules of Appellate Procedure 9.4                                               4
    Texas Rules of Appellate Procedure 52                                               vi
    Texas Rules of Appellate Procedure 52.3                                              .4
    iv
    STATEMENT OF THE CASE
    On August 31, 2015, respondent Joseph Kemp, as Administrator of the Estate of Lou
    Bertha Brooks, Deceased, filed a Sworn Complaint for Eviction against Relator Daniel Pearson,
    naming him Daniel King, and Parties in Interest Sharunda King, Jastasia King and Occupants in
    the Justice of the Peace Court, Precint 1, Place 1, Dallas, Dallas County, Texas to obtain
    possession of the real property located at 1914 Argyle Avenue, Dallas, Dallas County, Texas.
    In response to said complaint, Relator Daniel Pearson filed Special Exceptions,
    Objections and Answer. The parties in interest Sharunda King, Jastasia King and Occupants did
    not appear nor file an answer.
    On September 11, 2015, at the hearing on this matter, a judgment was rendered against
    relator Daniel Pearson and parties in interest Sharunda King, Jastasia King and Occupants
    granting respondent Joseph Kemp the premises, rent owing in the sum of $.00, attorney fees in
    the sum of $.00, interest on said judgment from this date at 5.00% per annum, and all costs of
    court in the amount of$296.00.
    On September 14, 2015, relator Daniel Pearson filed a de novo appeal and deposited a
    cash bond in the amount of $500.00 with the justice of the peace clerk. This matter was
    docketed with the Dallas County Clerk, assigned to Dallas County Court at Law No.3, and set
    for hearing on November 6, 2015. Counsel for relator and respondent agreed to a continuance
    which was granted by the court, and this matter was reset for hearing on November 20,2015.
    At the hearing of this matter on November 20, 2015, judgment was rendered for Joseph
    Kemp, granting him a writ of possession and costs of court. On November 27, 2015, relator filed
    a Notice of Appeal. On November 30, 2015, respondent filed a request for a writ of possession.
    On November 30, 2015, relator filed a Motion to Set Amount Required to Supersede Judgment,
    which was rejected for deficiencies. On November 30, 2015, relator filed a file-stamped copy of
    v
    the Notice of Appeal with the clerk of court for the Fifth Court of Appeal, Dallas, Texas. On
    December 1, 2015, relator filed this Writ of Injunction and Motionfor Emergency Relief
    STATEMENT OF JURISDICTION
    This court has jurisdiction over this petition for writ of mandamus under Section
    22.221(b) of the Texas Government Code and Texas Rules of Appellate Procedure 52.
    ISSUES PRESENTED
    Issue Number One
    May the Fifth Court of Appeal grant relator a writ of injunction in order to prevent the
    execution of the judgment rendered by the Dallas County Court at Law No.3 that grants
    respondent possession of the real property located at 1914 Argyle Avenue, Dallas, Dallas
    County, Texas in order to preserve its jurisdiction over said real property, whether or not
    supersedeas is available to the appellant?
    vi
    STATEMENT OF FACTS
    This case was docketed as a de novo appeal of a judgment of eviction rendered by the
    Justice ofthe Peace Court, Precinct 1, Place 1, Dallas, Dallas County, Texas. On November 20,
    2015, this matter was heard by the Dallas County Court at Law Number 3. The court rendered a
    final judgment against relator granting respondent a writ of possession for the real property
    located at 1914 Argyle Avenue, Dallas, Dallas County, Texas, and for costs of court.
    On November 27,2015, relator filed a Notice of Appeal with the Dallas County Clerk to
    appeal the final judgment rendered on November 20,2015. On November 30, 2015, respondent
    filed a Writ of Possession with the Dallas County Clerk. On November 30, 2015, relator filed a
    Motion to Set Amount Required to Supersede Judgment which was rejected for deficiencies. On
    November 30, 2015, relator filed a file-stamped copy of the Notice of Appeal with the clerk of
    court for the Fifth Court of Appeal, Dallas, Texas. On December 1,2015, relator filed this Writ
    of Injunction and Motionfor Emergency Relief
    ARGUMENT AND AUTHOIDTffiS
    Relator's application for injunctive relief in this Court concerns the jurisdiction of this
    court being threatened by respondent's enforcement of the judgment rendered on November 20,
    2015 by filing a request for a writ of possession. Should respondent obtain a writ of possession,
    and it is highly likely that he will, then such writ will remain enforceable during relator's appeal.
    It is also highly likely that respondent will pursue a writ of execution to have relator removed
    from the premises. Because respondent is proceeding to enforce the judgment, relator is at risk
    of losing possession by enforcement of the writ of possession. If relator loses any right to
    possession of the premises, his appeal becomes moot as to that issue. Briones v. Brazos Bend
    Villa Apts., 
    438 S.W.3d 808
    , 812-813 (Tex.App.-Houston         [14thDistrict] 2014, no pet.) (when
    supersedeas bond not posted and writ of possession is executed in favor of landlord, action is
    moot as to issue of possession because tenant no longer has claim to possession of property). See
    also Wilhelm v. Fed. Nat'l Mortgage Ass'n., 
    349 S.W.3d 766
    , 768-769 (Tex.App.-Houston
    [14thDistrict] 2011, no pet.); Kemper v. Stonegate Manor Apartments Ltd., 
    29 S.W.3d 362
    , 363
    (Tex.App.-Beaumont      2000, pet. dism'd w.o.j.), overruled on other grounds; Marshall v.
    Housing Authority of City of San Antonio, 
    198 S.W.3d 782
    (Tex.2006).
    "This court's power to grant temporary injunctions flows from the provisions of Article
    1823, and the power granted by that statute is limited to the purpose of protecting our
    jurisdiction." Pace v. 
    McEwen, 604 S.W.2d at 233
    citing Madison v. Martinez, 
    42 S.W.2d 84
    ,86
    (Tex.Civ.App.-Dallas 1931, writ ref'd).
    Relying on Texas Government Code § 22.221 and prior jurisprudence, the court in Pace
    clearly determined that a reviewing court may grant an injunction preventing the disposition of
    property in order to preserve its jurisdiction over the property, and that the reviewing court has
    this power whether or not supersedeas is available to the respondent. The Pace court further
    reasoned that
    [s]ince we issue injunctions only for that limited purpose and not for the purpose
    of protecting a litigant, our exercise of that power in no degree depends upon the
    rights of a litigant or the remedies available to him. Once our jurisdiction is
    threatened, our right to preserve and protect it cannot depend on the adequacy of
    legal remedies which would be available to the litigant but which are not available
    to us. Whether our jurisdiction will be preserved or destroyed cannot be left to
    the whim of a litigant this Court cannot file a supersedeas bond to prevent the
    destruction of our jurisdiction, nor can this Court order an unwilling litigant to file
    such a bond.
    Pace at 233.
    2
    In so reasoning, the Pace court granted relator's application for injunction, pending
    disposition of the appeal from the lower court's order.
    "It is well settled that an appellate court is authorized to protect is jurisdiction by
    preserving the subject matter of the appeal in order to make its decrees effective." EMW MIg.
    Co. v. Lemons, 
    724 S.W.2d 425
    ,426 (Tex.App.-Fort Worth 1987).
    The court in In re Gruebel reasoned that "[a] court of appeals is authorized to issue all
    writs necessary to enforce its jurisdiction. Tex. Gov't Code Ann. §22.221(a) (Vernon 2004). If
    an appeal pending before this Court becomes moot, we lose jurisdiction over it.      See Valley
    Baptist Med. Ctr. V Gonzalez, 
    33 S.W.3d 821
    , 822 (Tex.2000). Consequently, we may issue a
    writ of injunction to preserve the subject matter of a case pending appeal and to prevent the
    appeal from becoming moot. EMW Mfg. Co. v. Lemons, 
    724 S.W.2d 425
    , 426 (Tex.App.-Fort
    Worth 1987)." In re Gruebel, 
    153 S.W.3d 686
    (Tex.App.-Tyler 2005).
    PRAYER
    For these reasons, Daniel Pearson, Relator, requests that this Court grant relator's
    application for injunction pending disposition of the appeal from the lower court's order of
    November 20,2015.
    Date: December 1, 2015
    KathyRoux
    Attorney for Relator Daniel Pearson
    3
    CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.3G)
    This certifies that the undersigned has reviewed this Petition and concluded that every
    factual statement in it is supported by competent evidence included in the appendix or record, as
    required by Appellate Rule 52.3G).
    Date: December 1, 2015
    Kathy Roux
    Attorney for Relator Daniel Pearson
    CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i)
    I certify that this document contains less than 15,000 words, as indicated by the word-
    count function of the computer program used to prepare it, and excluding the caption, identity of
    parties and counsel, statement regarding oral argument, table of contents, index of authorities,
    statement of the case, statement of issues presented, statement of jurisdiction, statement of
    procedural history, signature, proof of service, certification, certificate of compliance, and
    appendix, as provided by Appellate Rule 9.4(i).
    Date: December 1,2015
    KathyRoux
    Attorney for Relator Daniel Pearson
    CERTIFICATE OF SERVICE
    This certifies that the undersigned served this Petition for Writ of Injunction on Joseph
    Kemp, Respondent, by sending it to lead counsel for Respondent, Zachary Johnson, at 500 N.
    Akard Street, Suite 2150, Dallas, Texas 75201-3302, and served it on Sharunda King and
    Jastasia King and Occupants, Real Parties in Interest, by sending it by U.S. First Class Mail,
    postage prepaid on December 1, 2015.
    Kathy Roux
    Attorney for Relator Daniel Pearson
    4
    APPENDIX A
    5
    JOHN F. WARREN
    Dallas County Clerk
    George Allen Sr. Court Bldg.
    600 Commerce St, Ste 101
    Dallas, Texas 75202-3551
    STATE OF TEXAS
    COUNTY OF DALLAS
    I, John F. Warren, Clerk of the County Court of Dallas County Court at Law No.3,
    Dallas County, Texas do hereby certify that the foregoing is a true and correct copy of
    document in Cause No. CC-15-05015-C.
    JOSEPH KEMP AS ADMINISTRATOR 0 ESTATE OF LOU BERTHA BROOKS,
    DECEASED, PLAINTIFF       (S)
    VS
    SHARUNDA KING; JASTASIA KING; DANIEL PEARSON, DEFENDANT                       (S)
    JUDGMENT,       filed on 20th day of November, 2015 in the Dallas County Court at Law
    No.3, Dallas County, Texas.
    WITNESS MY HAND AND SEAL of said Court this 20th day of November, 2015.
    John F. Warren, County Clerk
    BY:~
    Gwendolyn Thomas, Deputy
    ------~
    "         ,                                                                                                                       )   personally
    "'-
    a"~..
    8feEYfailedto
    ,    •
    appear and the
    .._
    -     ----:"-T'"
    ;11.
    C<>urt proceeded to hear the case and enter Judgment in favor of the Plaintiff as set forth below.                  . '; :~,,+
    CC- 16 - 06016 - C
    COJ
    ORDER - JUDGMENT
    963976
    '11``ml'mmmlmllllllll
    \   1"
    ....          ITlSTREREFt1KI._.````mthatPlajntitfJ0Sep~                                                            " .,~,
    Kemp, as Administrator of the Estate of Lou Bertha Brooks, Deceased, have judgment against
    Defendants Daniel Pearson, Sharunda King, Jastasia King and all occupants for:
    1.     A writ of possession granting' Plaintiff possession of the premises
    located at 1914 Argyle Avenue, Dallas, Texas 75203; and
    4.      All costs of court.
    .
    ; ,
    ~
    for which execution shall issue.
    This Judgment is [mal and disposes of all claims and parties.
    SIGNED AND ORDERED this           -it;   day of A!~2015.
    ao``
    of the County Court at Law, No. Thee
    of Dallas County, Texas
    JUDGMENT- S8'18 P~e
    .....   -e-   -   _-
    -   _'
    APPENDIX B
    9
    FILED
    11/27/20153:36:21   PM
    JOHN F. WARREN
    COUNTY CLERK
    DALLAS COUNTY
    CAUSE NO. CC-1 5-0501 5-C
    JOSEPH KEMP, AS ADMINISTRATOR                 §          IN THE COUNTY COURT AT LAW
    OF THE ESTATE OF LOU BERTHA                   §
    BROOKS, DECEASED,                             §
    Plaintiff                          §
    §
    v.                                            §          NUMBER 3 FOR
    §
    DANIEL PEARSON, SHARUNDA KING,                §
    JASTASIA KING AND ALL OTHER                   §
    OCCUPANTS                                     §
    Defendants                        §          DALLAS COUNTY, TEXAS
    NOTICE OF APPEAL
    TO THE HONORABLE JUDGE OF THIS COURT:
    Pursuant to Rule 25.1 of the Texas Rules of Appellate Procedure, DANIEL PEARSON,
    who is a defendant to JOSEPH KEMP's Sworn Complaint for Eviction, filed on August 31,2015,
    gives notice of his appeal to the Fifth Court of Appeals for the Dallas County Court at Law
    Number 3, sitting at Dallas, Dallas County, Texas, from the Judgment rendered by said Court in
    the above-entitled and numbered cause on November 20, 2015, granting a writ of possession of
    the premises located at 1914 Argyle Avenue, Dallas, Texas     75203 and all costs of court to
    plaintiff JOSEPH KEMP, as Administrator of the Estate of Lou Bertha Brooks, Deceased.
    Dated: November 27,2015                           Respectfully submitted,
    Kathy E. Roux, TBN 24054141
    P. O. Box 1701
    Grapevine, TX 76099
    Tel.: (817) 874-8877
    Fax: (817) 878-5884
    Email: kathy@kathyrouxlaw.com
    Attorney for Daniel Pearson
    CERTIFICATE OF SERVICE
    I hereby certify that on this the 27th day of November, 2015, a true and correct copy of
    the foregoing instrument titled Notice of Appeal was served in accordance with the Texas Rules
    of Civil Procedure to the following:
    Zachary E. Johnson                                 Sharunda King
    500 N. Akard Street, Suite 2150                    1914 Argyle Avenue
    Dallas, Texas 75201-3302                           Dallas, TX 75203
    Email: zach@spencerlawpc.com
    Tel.: (214) 965-9999
    Fax: (214) 965-9500
    Jastasia King                                      Occupants
    1914 Argyle Avenue                                 1914 Argyle Avenue
    Dallas, TX 75203                                   Dallas, TX 75203
    Kathy E. Roux
    II
    APPENDIX C
    12
    JOHN F WARREN
    DALLAS COUNTY CLERK
    GEORGE ALLEN SR COURTS BLDG
    600 COMMERCE ST, STE 101
    DALLAS, TEXAS 75202
    REQUEST FOR: WRIT OF EXECUTIONS I ABSTRACTS OF JUDGMENTS
    ORDER OF SALE AND WRITS OF POSSESSION
    *CERTIFIED COPIES - ON OPEN CASE ONLY
    Date:                                  \ \-        13··lS
    Case Number:
    )ose~n
    Cc· as\5"A·~minl~·->=m'
    ~mpJ
    050;"~'\::;'S-           t
    fi)=-:(""():?f"".t""t'I-e"8'7"Stt'l"""le:::-=ot:"".·-rc-:-:-.o``
    8er-t-v>u"   BrOD`` OeUfAS'ftL,Pl4innff
    Style:        V. !')Cinit\ eeA(1),?-O! f,barundll, (?JO"i1:tfSttAf,lo..l?'''j                                                       ~Yldall         o+nuIOU4pantr; IJdendonfs
    !
    Party to be served:                I        Da.n et pea-rso n                                                                                                      1
    Address to be served:                   \~      14           A-Y]~f. A- \Ien U,f.,
    Dot (laS re~Cls. ,SL03  I
    Please issue:
    Writ of Execution                          Serve by:      Constable or                          Sheriff                   Mail Back:
    ($5 Plus $150)                                                            ($5 for issuance)
    Writ of Possession                        Serve by: VConstable or _                            Sheriff                  Mail Back:
    ($5 Plus $170)                                                            ($5 for issuance)
    Order of Sale                             Serve by: _ Constable or _                           Sheriff                  Mail Back: __
    ($5 Plus $150)                                                             ($5 for issuance)
    Abstract of Judgment                      Forward to Recording: __                                                        Mail Back:
    ** ($5 Plus $26 Recording Fee)                                              ($5 for issuance)
    Additional information
    Recording the Abstract Submit a Separate check for the amount of ($26.00) make payable to:
    John Warren County Clerk
    Mailed to:      John Warren, County Clerk
    Dallas County Recording Division
    509 Main 2nd Floor Records Building
    Dallas, Texas 75202
    Certified Copies - Pending cases are $5.00 for the first page, then $1.00 per page every page after and pay for
    it through e-filing.
    If it is a Closed Case,please make a check made payable to: John Warren County Clerk.
    Mailed to:           Dallas County Central Records
    George Allen Senior Courts Building
    600 Commerce St. Floor 81
    Dallas, Texas 75202
    Requested by:   1lALhayo                       f· 00 nnbOOPhone                      numbertl~               ~     qqqq
    ~S··
    Attorney,             laintiff or Defendan~
    Attorney Address:                                   •                (j   S , ft· 2tSD
    Attorney City        _..D<....:C1:...:...:_Il:...:.a"'-"S~                   _
    State and Zip Code     re '/..aS ISW ,
    APPENDIX D
    14
    11/30/2015                                             Search Results: (604 s.w.2d 231) (13 found)
    PACE v. MCEWEN, 
    604 S.W.2d 231
    (Tex.Civ.App.-San Antonio 1980)
    
    604 S.W.2d 231
                         Joe Dudley PACE, Movant, v. John J. McEWEN, Jr., Respondent.
    No. 16573.
    Court of Civil Appeals of Texas, San Antonio.
    June 20, 1980.
    Richard G. Strong, Casseb, Leon, Rodgers, Strong & Pearl,
    San Antonio, Jeffrey A. Davis, Reynolds, Allen & Cook,
    Houston, for movant.
    Pat Maloney, Jack Pasqual, George LeGrand, San Antonio, for
    respondent.
    Page 232
    OPINION
    CADENA, Chief Justice.
    Relator, Joe Dudley Pace, has filed this original application
    for injunction to stay the enforcement of an order entered by a
    Bexar County district court on June 9, 1980, pending
    disposition of relator's appeal from such order.
    In 1977 respondent, John J. McEwen, Jr., obtained a money
    judgment against relator which has not been satisfied.
    Respondent, after the 1977 judgment had become final, filed, in
    that same case, a "Motion in the Nature of a Bill of Discovery
    and Motion for Declaratory Relief." In this proceeding
    respondent sought judgment allowing respondent to execute upon
    real estate located in Harris County, legal title to which is
    in relator, in satisfaction of the 1977 judgment; and a
    declaration that equitable title to such land lies in the
    estate of respondent's testatrix. The motion also contained a
    prayer for general relief.
    The June 9, 1980, judgment, from which relator has perfected
    his appeal, declares that the Harris County land is not the
    homestead of relator and not exempt from forced sale or
    execution. The judgment orders relator to turn over such
    property to the Sheriff of Harris County and orders that
    sheriff to sell the property to the highest bidder according to
    the laws and procedures provided for executions. Finally, the
    judgment decrees that relator shall turn over said land to the
    sheriff not later than 12:00 o'clock noon on June 19, 1980, and
    that should relator fail to do so, the court "shall enforce
    this order by proceedings for contempt or otherwise in case of
    refusal or disobedience, all as provided by
    Tex.Rev.Civ.Stat.Ann. art. 3827 (a)(3827a)."
    Relator's application for injunctive relief in this Court
    concerns only that portion of the June 9, 1980, judgment which
    orders him to turn the property over to the Sheriff of Harris
    County no later than noon, June 19, 1980.
    Whether the judgment entered below is one which the trial
    court had authority to enter under the statute referred to in
    the judgment is a question which is not now before us, nor are
    data:text/html;charset=utf-8.%3Cpre%20style%3D%22margin%3A%200PXO/~%20padding%3A%200px%3B%2Ofont-family%3A%2OCousine%2C%20Courie...   1/3
    1"
    11/30/2015                                             Search Results: (604 s.w.2d 231) (13 found)
    we at this time called on to determine whether the relief
    sought by respondent's motion "in the nature of a bill of
    discovery" is available under that statute or under other rules
    relating to discovery.
    Article 1823, Tex.Rev.Civ.Stat.Ann. (Vernon 1964), gives
    this Court the power to issue such writs as may be required to
    protect and preserve its jurisdiction. We agree with relator
    that unless injunctive relief is now granted, he will be forced
    to comply with that portion of the judgment requiring him to
    turn his property over to the sheriff for sale at execution,
    and any opinion we might subsequently render as to the validity
    of that portion of the judgment would be meaningless.
    Respondent urges that under Rule 364, Tex.R.Civ.P. (1977),
    relator had the right to prevent any portion of the judgment
    below by filing a supersedeas bond. We are in agreement with
    this statement, but we do not agree that this Court is deprived
    of the power to issue the relief sought by relator because Rule
    364 affords relator an adequate remedy at law.
    In Burch v. Johnson, 
    445 S.W.2d 631
    , 632 (Tex.Civ.App.-El
    Paso 1969, no writ), the Court, in a per curiam opinion, said:
    Both injunction and prohibition do not lie where
    there is an adequate remedy through the ordinary
    channels of procedure. It is clear that Rule 364
    affords the relator the right to suspend the
    judgment against it by giving the supersedeas bond
    thus staying (enforcement of the judgment) .
    Having a complete provisional remedy at law, the
    relators are not entitled to the relief sought.
    A similar holding was made in Dallas Bank & Trust Co. v.
    Thompson, 
    78 S.W.2d 740
    (Tex.Civ.App.-Dallas 1935, no writ) .
    In Landrum v. Centennial Rural High School Dist., 
    146 S.W.2d 799
        (Tex.Civ.App.-Austin 1940, writ dism'd judgmt. cor.), the
    Court pointed out that a party wishing to prevent enforcement
    of a judgment from which he has perfected an appeal had two
    remedies available: "First, to obtain pending
    Page 233
    the appeal a temporary injunction..      Art. 1823, R.S. 1925.
    Second, appellants could have superseded the judgment of the
    trial court ....   
    " 146 S.W.2d at 801
    .
    The rule which respondent seeks to apply has undoubted
    application in cases where the purpose of the injunction is to
    protect the rights of a litigant. This court has no power to
    grant a temporary injunction to prevent damage to an appellant.
    That power is vested exclusively in trial courts. Our power to
    issue injunctions flows from the provisions of Article 1823,
    and the power granted by that statute is limited to the purpose
    of protecting our jurisdiction. See Madison v. Martinez, 
    42 S.W.2d 84
    ,
    86 (Tex.Civ.App.-Dallas 1931, writ ref'd). Since we
    issue injunctions only for that limited purpose and not for the
    purpose of protecting a litigant, our exercise of that power in
    no degree depends upon the rights of a litigant or the remedies
    available to him. Once our jurisdiction is threatened, our
    right to preserve and protect it cannot depend on the adequacy
    of legal remedies which would be available to the litigant but
    which are not available to us. Whether our jurisdiction will
    be preserved or destroyed cannot be left to the whim of a
    litigant this Court cannot file a supersedeas bond to prevent
    the destruction of our jurisdiction, nor can this Court order
    data:textlhtml;charset=utf.8,%3Cpre%20style%3D%22margin%3A%200px%3B%2Opadding%3A%200px%3B%2Ofont·family%3A%2OCousine%2C%20Courie...   213
    110
    11/30/2015                                                Search Results: (604 s.w.2d 231) (13 found)
    an unwilling litigant to file such a bond. To hold that the
    availability of supersedeas to a litigant in any way affects
    the power granted to this Court to protect its jurisdiction is
    to ignore the reason for the grant of power and the purpose to
    be served by its exercise.
    We decline to follow Burch and Dallas Bank & Trust Co.
    Relator's application for injunction, pending disposition of
    the appeal from the order of June 9, 1980, is granted.
    MURRAY, Justice, dissenting.
    I dissent. The record in this case shows that the relator
    has made no attempt to suspend any portion of the judgment
    below by the execution of a supersedeas bond. Tex.R.Civ.P. 364
    has application to judgment such as the one under consideration
    here. In this case I would follow the reasoning in Burch v.
    Johnson, 
    445 S.W.2d 631
    (Tex.Civ.App.-El Paso 1969, no writ),
    and deny the injunction.
    data:textlhtm I;charset=utf-8. %3Cpre%20style%3D %22margin%3A %200px%38%20padding%3A %200px%38%2Ofont-fam ily%3A%2OCousine%2C%20Courie.. .   3/3
    lq-