in Re Jeanne Bowser and Albert Smith ( 2014 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed May
22, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00338-CV
IN RE JEANNE BOWSER AND ALBERT SMITH, Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
County Court at Law No 1
Galveston County, Texas
Trial Court Cause No. CV-0071627
MEMORANDUM OPINION
On May 5, 2014, relators Jeanne Bowser and Albert Smith filed a petition
for writ of mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also
Tex. R. App. P. 52. In the petition, relators ask this Court to compel the Honorable
John Grady, presiding judge of the County Court at Law No 1 of Galveston
County, to vacate his rulings that relators are not indigent for purposes of appeal
from the judgment entered against them in the underlying forcible detainer action.
Real parties in interest filed a forcible detainer action against relators in the
Justice Court for Precinct 4 of Galveston County, which signed a judgment in
favor of real parties in interest. Relators appealed the judgment de novo to County
Court at Law No. 1 of Galveston County, which, on April 7, 2014, also signed a
judgment in favor of real parties in interest. Relators appealed from the April 7,
2014 judgment. Their appeal is pending in this Court and is docketed under No.
14-14-00331-CV, Jeanne Bowser and Albert Smith v. Sandra Bergquist and
Robert Ponder.
Relators complain that the trial court abused its discretion by failing to find
that they are indigent for purposes of appeal and sustaining a contest to their
affidavit of indigence. To be entitled to mandamus relief, a relator must
demonstrate (1) the trial court clearly abused its discretion; and (2) the relator has
no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011)
(orig. proceeding).
Prior to the 1997 amendments to the Texas Rules of Appellate Procedure,
appellate courts did not have jurisdiction in civil cases to review orders sustaining
a contest to an affidavit of indigence; mandamus was the only avenue for such
orders. In re Arroyo, 988 S.W.2d 737, 738 (Tex. 1998) (orig. proceeding) (per
curiam). However, under the amended rules of appellate procedure, an indigent
party may obtain the record pertaining to the trial court’s sustaining the contest to
his affidavit of indigence and challenge that ruling as part of his appeal. Id. at
738−39; see also Tex. R. App. P. 20.1(j)(3). Therefore, mandamus is not the
appropriate remedy. In re Arroyo, 988 S.W.2d at 739. Relators’ remedy is to
2
challenge the trial court’s rulings related to their claim of indigence in their appeal
pending in this Court. See Tex. R. App. P. 20.1(j).
Relators also ask that we stay the issuance of a writ of possession. After
filing their petition for writ of mandamus in this Court, relators advised that the
trial court had issued a writ of possession the same day they filed their petition,
rendering relators’ request for relief moot.1
Accordingly, we deny relators’ petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Boyce, Busby, and Wise.
1
Moreover, relators did not file a motion for temporary relief or provide a copy of the
judgment, or any other document related to such request for relief. See Tex. R. App. P. 52.3(k),
52.10(a).
3