Opinion
No. 14-06-00648-CV
Opinion filed September 26, 2006.
Original Proceeding Writ of Prohibition.
Petition for Writ of Prohibition Granted.
Panel consists of Chief Justice HEDGES and Justices YATES and SEYMORE.
MEMORANDUM OPINION
On July 27, 2006, relator Maryam Jamilah filed a petition for writ of mandamus and a motion for temporary relief, asking this Court to enjoin Justice of the Peace David E. Foster from conducting a trial in cause number HEV02147, eviction proceedings filed against relator. See TEX. GOV'T CODE ANN. § 22.221 (Vernon 2004); TEX. R. APP. P. 52.10. The real property at issue in the eviction proceedings is the same real property that is the subject of an appeal pending in this Court under Cause No. 14-06-00013-CV.
At the time relator filed the petition, the appeal was abated; however, it has since been reinstated.
We issued an order staying the eviction proceedings on July 28, 2006, and requested a response from real party in interest, Washington Mutual Bank f/k/a Washington Mutual Bank, F.A., servicing agent for Wachovia Bank, N.A. ("Washington Mutual"). Washington Mutual filed its response and a motion to dismiss, claiming we do not have appellate jurisdiction over eviction proceedings. Washington Mutual does not dispute that the same property is involved in both causes. For the reasons discussed below, we grant relator's requested relief and deny Washington Mutual's motion to dismiss.
A court of appeals is authorized to issue all writs necessary to enforce its jurisdiction. TEX. GOV'T CODE ANN. § 22.221(a). The jurisdiction of an appellate court is invoked when a notice of appeal is filed. See TEX. R. APP. P. 25.1(b); Wolters v. Wright, 623 S.W.2d 301, 305 (Tex. 1981). Thus, once appellate jurisdiction is invoked, an extraordinary writ may issue to enforce or protect that jurisdiction. See, e.g., Spiller v. Sherrill, 518 S.W.2d 268, 270-71 (Tex.Civ.App.-San Antonio 1974, no writ) ("Where the jurisdiction of the Court of Civil Appeals has been invoked, that Court has power to . . . enforce and protect its jurisdiction and to preserve the subject-matter of the litigation in order to make its decrees effective."); see also Upjohn Co. v. Marshall, 843 S.W.2d 203, 204 (Tex.App.-Dallas 1992, no writ); Shelvin v. Lykos, 741 S.W.2d 178, 181 (Tex.App.-Houston [1st Dist.] 1987, no writ); Bush v. Vela, 535 S.W.2d 803, 804 (Tex.Civ.App.-Corpus Christi 1976, no writ).
When the dispute that is the basis of a relator's petition implicates a pending appeal, the appellate court can act to enforce its jurisdiction. See Wolters, 623 S.W.2d at 305; see, e.g., Upjohn Co., 843 S.W.2d at 204 (granting mandamus relief where the trial court's judgment threatened the appellate court's decision in an appeal). Here, because the same property is involved in both the appeal and the eviction proceedings, we have jurisdiction to issue a writ. Construing relator's petition as a request for a writ of prohibition, we order the lower court from proceeding further in cause number HEV02147, pending disposition of relator's pending appeal. Having concluded we have jurisdiction to issue the writ, we deny Washington Mutual's motion to dismiss.
We are to liberally construe the pleadings of a party acting pro se. See Barnes v. State, 832 S.W.2d 424, 426-27 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding); see also TEX. R. APP. P. 52. A writ of mandamus issues to compel action by those who have a duty to act, while the writ of prohibition issues to compel a court of inferior jurisdiction from taking certain actions. See Tilton v. Marshall, 925 S.W.2d 672, 676 n. 4 (Tex. 1996); In re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d 400, 403 (Tex.App.-Tyler 2006, orig. proceeding). The same principles govern both extraordinary writs. See Tilton, 925 S.W.2d at 676 n. 4.