Opinion
NO. 01-13-00517-CV
03-04-2014
IN RE ARTIS CHARLES HARRELL, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Artis Charles Harrell, an inmate proceeding pro se, has filed a petition for writ of mandamus, challenging interlocutory trial court orders and a final summary judgment. He argues that the final summary judgment is void because it was "used . . . as a death penalty sanction." He further contends that respondent, the Honorable William R. Burke, abused his discretion by (1) signing the summary judgment and a dismissal order based on an ex parte communication, (2) denying his motion for a bench warrant, and (3) failing to comply with this Court's opinion directing the trial court to set his case for trial. We deny the petition for writ of mandamus.
The petition identifies the underlying case as Artis Charles Harrell v. Branch Brinson, et al., No. 2006-02867, in the 189th District Court of Harris County, the Honorable William R. Burke presiding.
Mandamus relief is available only when a trial court abuses its discretion and there is no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). Accordingly, mandamus will not issue where there is "'a clear and adequate remedy at law, such as a normal appeal.'" In re Unitec Elevator Servs., 178 S.W.3d 53, 58 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding) (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)).
Because the trial court signed a final judgment, Harrell has an adequate remedy by appeal. "A writ of mandamus is not a substitute for an appeal." In re Sec. Nat'l Ins., No. 14-11-00013-CV, 2011 WL 332712, at *1 (Tex. App.— Houston [14th Dist.] Feb. 3, 2011, orig. proceeding) (citing Walker, 827 S.W.2d at 839 and In re Bernson, 254 S.W.3d 594, 595 (Tex. App.—Amarillo 2008, orig. proceeding)); see In re Smith, 263 S.W.3d 93, 96 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (denying mandamus relief because remedy by appeal was not inadequate even if relator filed notice of appeal untimely).
Conclusion
We deny the petition for writ of mandamus and dismiss any pending motions as moot.
PER CURIAM
Panel consists of Justices Jennings, Higley, and Sharp.