in Re Thomas W. Stephens ( 2019 )

Petition for Writ of Mandamus Dismissed in Part and Denied in Part, Petition
for Writ of Injunction Dismissed in Part and Denied in Part, Request for
Declaratory Relief Dismissed, and Memorandum Opinion filed July 16, 2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00492-CV
IN RE THOMAS W. STEPHENS, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
WRIT OF INJUNCTION
DECLARATORY RELIEF
309th District Court
Harris County, Texas
Trial Court Cause No. 2016-55185
MEMORANDUM OPINION
On June 20, 2019, relator Thomas W. Stephens filed a petition for writ of
mandamus, petition for writ of injunction, and petition for declaratory judgment in
this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. Relator
names the Honorable Linda Marie Dunson, presiding judge of the 309th District
Court of Harris County, and Molly Mai, court coordinator of the 309th District
Court, as respondents.
In the underlying suit affecting the parent-child relationship, relator filed a
counter-petition to modify the parent-child relationship. Included in relator’s
counter-petition is a request for temporary orders. Relator complains that Mai
refused his requests to set his counter-petition and request for temporary orders for
a hearing and the trial court refused to rule on his counter-petition and request.
Relator seeks relief from Mai’s purported refusal to set his counter-petition and for
a hearing and the trial court’s failure to rule on the counter-petition
I. PETITION FOR WRIT OF MANDAMUS
A. Court Coordinator
A court of appeals may issue writs of mandamus against certain specified
parties. Tex. Gov’t Code § 22.221(b). The courts of appeals may also issue all writs
necessary to enforce the court of appeals’ jurisdiction. Id. § 22.221(a). A court
coordinator is not among parties specified in the Government Code against whom a
writ of mandamus may issue. See id. at § 22.221(b). Relator has not shown that the
issuance of a writ of mandamus against Mai is necessary to enforce this court’s
jurisdiction. See id. at § 22.221(a). The petition for writ of mandamus against Mai
is dismissed for lack of jurisdiction.
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B. District Court Judge
Ordinarily, to be entitled to mandamus relief, a relator must show that the trial
court abused its discretion and that the relator lacks an adequate remedy by appeal.
In re N. Cypress Med. Ctr. Operating Co., Ltd., 559 S.W.3d 128, 130 (Tex. 2018)
(orig. proceeding). When a motion is properly pending before a trial court, the act
of considering and ruling on it is ministerial, and mandamus may issue to compel
the trial court to act. Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992)
(orig. proceeding) (per curiam). To establish that the trial court abused its discretion
by failing to rule on a properly pending motion, the relator must establish that the
trial court (1) had a legal duty to perform a nondiscretionary act; (2) was asked to
perform the act; and (3) failed or refused to do so. In re Pollet, 281 S.W.3d 532, 534
(Tex. App.—El Paso 2008, orig. proceeding).
Relator filed his counter-petition to modify the parent-child relationship with
the district clerk as it bears the clerk’s stamp showing the time and date it was filed.
Relator made Mai aware of the counter-petition. However, relator has not shown
that the trial judge was aware of his counter-petition or request for temporary orders
therein contained. The court coordinator’s knowledge of the counter-petition does
not impute her knowledge of the filing to the trial judge. Cf. In re Smith, 279 S.W.3d
714, 715 n.1 (Tex. App.—Amarillo 2007,orig. proceeding) (holding that filing a
document with the district clerk does not mean that the trial court knows of it; nor is
the clerk’s knowledge imputed to the trial court); In re Chavez, 62 S.W.3d 225, 228
(Tex. App.—El Paso 2001, orig. proceeding) (same).
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Relator must show that the trial judge knew of the filing of the counter-
petition, and the trial judge cannot be faulted for not ruling on a motion that was not
called to her attention. The petition for writ of mandamus against Judge Dunson is
denied.
II. PETITION FOR WRIT OF INJUNCTION
The purpose of a temporary injunction is to enforce or protect the appellate
court’s jurisdiction. In re Sheshtawy, 161 S.W.3d 1, 1 (Tex. App.—Houston [14th
Dist.] 2003, orig. proceeding). The writ of injunction is issued by superior court to
control, limit, or prevent action in a court of inferior jurisdiction. In re Olson, 252
S.W.3d 747, 747 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding). The
use of a writ of injunction is limited to cases in which the court of appeals has actual
jurisdiction over a pending appeal. Id.
A. Court Coordinator
As to Mai, a court coordinator is not a court, and we do not have jurisdiction
to issue a writ against a court coordinator unless it is necessary to enforce our
jurisdiction. See id. (holding that the appellate court did not have jurisdiction to
issue a writ of injunction against a district clerk). Relator has not shown that it is
necessary to issue a writ of injunction against Mai to enforce this court’s jurisdiction.
Therefore, the petition for writ of injunction against Mai is dismissed for lack of
jurisdiction.
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B. District Court Judge
As to Judge Dunson, relator has not shown that he is entitled to a writ of
injunction against her. The use of a writ of injunction is limited to cases in which
we have actual jurisdiction over a pending appeal. See id. Relator does not have an
appeal pending in this court. Therefore, relator’s petition for a writ of injunction
against Judge Dunson is denied.
III. REQUEST FOR DECLARATORY RELIEF
The purpose of the Declaratory Judgments Act is “to settle and to afford relief
from uncertainty and insecurity with respect to rights, status, and other legal
relations.” Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b). A court of appeals lacks
jurisdiction to render declaratory judgments in original proceedings. In re Perkins,
No. 03-18-00146-CV, 2018 WL 1247438, at *1 n.1 (Tex. App.—Austin Mar. 9,
2018, orig. proceeding) (mem. op.); Lydick v. Chairman of the Dallas Cty.
Republican Exec. Comm., 456 S.W.2d 740, 741 (Tex. App.—Dallas 1970, orig.
proceeding); Donald v. Carr, 407 S.W.2d 288, 291 (Tex. App.—Dallas 1966, orig.
proceeding). Therefore, relator’s request for a declaratory judgment against Mai and
Judge Dunson is dismissed for lack of jurisdiction.
IV. CONCLUSION
In summary, relator’s (1) petition for writ of mandamus is dismissed for lack
of jurisdiction as to Mai and denied as to Judge Dunson; (2) petition for writ of
injunction is dismissed for lack of jurisdiction as to Mai and denied as to Judge
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Dunson; and (3) request for declaratory relief is dismissed for lack of jurisdiction as
to Mai and Judge Dunson.
PER CURIAM
Panel consists of Justices Wise, Jewell, and Hassan.
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