Summary
stating that under section 109.001, trial court must render temporary orders pending appeal "[n]ot later than the 30th day after the date an appeal is perfected"
Summary of this case from Datta v. RubioOpinion
No. 14-11-00657-CV
Opinion filed August 23, 2011.
Original Proceeding, Writ of Prohibition, Writ of Mandamus.
Appealed from the County Court at Law, Waller County, Texas, Trial Court Cause No. 11-03-20780.
Panel consists of Justices FROST, SEYMORE, and JAMISON.
MEMORANDUM OPINION
On August 1, 2011, relator Jeffrey W. Harper filed a petition for writ of prohibition and writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator contends that the Honorable June Jackson, presiding judge of the County Court at Law of Waller County does not have jurisdiction to issue temporary orders in the underlying case.
On May 17, 2011, the trial court entered a final decree of divorce. Relator perfected appeal by filing a notice of appeal on June 10, 2011, which this court docketed as cause number 14-11-00572-CV. On July 21, 2011, the real party in interest, Karen Harper, filed a motion for temporary orders pending appeal seeking payment of temporary child support, and appropriate orders for the conservatorship of the child. A hearing on this motion was set for August 2, 2011. On August 1, 2011, relator filed this original proceeding seeking a writ of prohibition, or in the alternative, a writ of mandamus to compel the respondent to refrain from ruling on real party in interest's motion for temporary orders because the motion was filed more than 30 days after appeal was perfected.
This court has jurisdiction to issue writs of prohibition to protect its jurisdiction. See Tex. Gov't Code Ann. § 22.221(a). The writ of prohibition is an extraordinary judicial writ that may be issued by a court of appeals as a court of superior jurisdiction, directed to a court of inferior jurisdiction. Humble Exploration Co. v. Walker, 641 S.W.2d 941, 943 (Tex. App.-Dallas 1982, orig. proceeding). The purpose of this writ is generally to prevent an inferior tribunal from exercising jurisdiction which it has no lawful right to exercise. See id. A writ of prohibition may be granted (1) to prevent interference with higher courts in deciding a pending appeal, (2) to prevent an inferior court from entertaining suits that will re-litigate controversies already settled by the issuing court, or (3) to prohibit a trial court from acting when it affirmatively appears the court lacks jurisdiction. See id. This court should exercise great caution before issuing a writ of prohibition. See id. In this original proceeding, relator seeks a writ prohibiting respondent from granting temporary orders pending appeal because the judge no longer has jurisdiction to do so. Before issuing such a writ, this court must be satisfied that there is a real threat that the respondent will act without jurisdiction by granting temporary orders pending appeal. See In re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d 400, 403 (Tex. App.-Tyler 2006, orig. proceeding).
Real party in interest filed her motion for temporary orders pending appeal under sections 6.709(a) and 109.001 of the Family Code. See Tex. Fam. Code Ann. § 6.709(a) (West 2006); id. § 109.001 (West 2008). Under either statute, the trial court must render any temporary orders pending appeal "[n]ot later than the 30th day after the date an appeal is perfected." Id. §§ 6.709(a), 109.001. Relator perfected appeal on June 10, 2011, and more than thirty days have passed without the trial court rendering any temporary orders pending appeal. When real party in interest filed her motion on July 21, 2011, respondent no longer had jurisdiction to render temporary orders pending appeal. See In re L.L., No. 04-08-00911-CV, 2010 WL 2403579, at *8 (Tex. App.-San Antonio June 16, 2010, pet. filed) (mem. op.); Love v. Bailey-Love, 217 S.W.3d 33, 36-37 (Tex. App.-Houston [1st Dist.] 2006, no pet.); In re Boyd, 34 S.W.3d 708, 711 (Tex. App.-Fort Worth 2000, orig. proceeding). If the respondent were to grant this motion, any such temporary orders would be void. See In re L.L., 2010 WL 2403579, at *8; Love, 217 S.W.3d at 36-37; In re Boyd, 34 S.W.3d at 711.
But, on the record before this court, real party in interest's motion merely has been set for hearing. The record does not show a real threat that the respondent will act without jurisdiction by granting this motion. See In re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d at 403. Relator has not shown that he is entitled to a writ of prohibition. See id. Accordingly, we deny relator's petition for a writ of prohibition without prejudice to refiling if evidence of a real threat develops.
Because the trial court has not rendered any order, we deny relator's petition for a writ of mandamus without prejudice to refiling if the trial court renders an order.