Summary
addressing appellate court's limited authority to grant injunctive relief
Summary of this case from In re StierOpinion
No. 10-03-390-CV.
Opinion delivered and filed: February 11, 2004.
Original Proceeding.
Petition dismissed.
Robert A. Swearingen — The Swearingen Firm, P.C. — College Station for Appellant/Relator.
Cindy L. Miller — Payne, Watson, Miller Malechek, P.C. — Bryan for Appellee/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Justice VANCE not participating).
MEMORANDUM OPINION
This case concerns a petition for writ of injunction. Andrea Gayle Smith petitions this Court to issue a writ staying the trial court's order modifying custody of Smith's children and staying enforcement of the order. We will dismiss the petition.
When Andrea and Scott Smith were divorced in 2002, the trial court appointed them joint managing conservators of their two children, A.C.S. and G.E.S., and ordered that Andrea have the right to establish the primary residence of the children "without restriction." See TEX. FAM. CODE ANN. § 153.134(b) (Vernon Supp. 2004). Thereafter, Andrea moved out of state with the children. Scott filed a petition to modify the parent-child relationship. In August, 2003, the trial court orally rendered judgment limiting the geographic area within which Andrea could establish the children's primary residence to certain counties in Texas, to take effect on December 1, 2003. When Andrea filed her petition on December 4, the trial court had not signed an order. On December 5, the court signed an order that limits Andrea's right to establish the children's primary residence to an area comprising forty-eight designated Texas counties, to take effect December 15. The order also provides that if Andrea does not do so, Scott will have the right to establish the children's primary residence. On December 5, Andrea gave notice of appeal of the order. We have docketed that appeal, styled In the Interest of A.C.S. and G.E.S., as cause number 10-03-392-CV.
The courts of appeals have limited injunctive powers. "Each court of appeals . . . may issue . . . all . . . writs necessary to enforce the jurisdiction of the court." TEX. GOV'T CODE ANN. § 22.221(a) (Vernon Supp. 2004). A court of appeals "has no original jurisdiction to grant writs of injunction, except to protect its jurisdiction over the subject matter of a pending appeal, or to prevent an unlawful interference with the enforcement of its judgments and decrees." Ott v. Bell, 606 S.W.2d 955, 957 (Tex.Civ.App.-Waco 1980, no writ). Unlike in the trial court, where a temporary injunction will lie to preserve the status quo pending trial, see Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993), injunction will not lie in the courts of appeals merely to preserve the status quo pending appeal, EMW Mfg. Co. v. Lemons, 724 S.W.2d 425, 426 (Tex. App.-Fort Worth 1987, orig. proceeding). Nor will injunction lie merely "to protect a party from damage pending appeal." Gibson v. Waco Indep. Sch. Dist., 971 S.W.2d 199, 204 (Tex. App.-Waco 1998) (quoting Parsons v. Galveston County Employees Credit Union, 576 S.W.2d 99, 99 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ)), Gibson vacated on other grounds, 22 S.W.3d 849 (Tex. 2000).
We lack jurisdiction to issue the writ. Andrea argues that an injunction would best preserve the status quo pending appeal and would prevent hardship to her. Neither argument brings her petition within our writ jurisdiction. Andrea relies on authority that holds that the courts of appeals' writ jurisdiction to protect their jurisdiction over the subject matter of a pending appeal includes the prevention of the appeal's becoming moot. See Pendleton Green Assocs. v. Anchor Sav. Bank, 520 S.W.2d 579, 582 (Tex.Civ.App.-Corpus Christi 1975, no writ). "[A] case becomes moot when a court's actions cannot affect the rights of the parties." Pinnacle Gas Treating, Inc. v. Read, 104 S.W.3d 544, 545 (Tex. 2003). Here, the enforcement of the trial court's order does not deprive us of the power to affect the rights of Andrea and Scott. Even if Andrea loses and Scott gains the exclusive right to establish the primary residence of the children, we will have the power to reverse the trial court's order in Andrea's pending appeal. Accordingly, the petition is dismissed.
In connection with her petition, Andrea also filed a Motion for Emergency Stay. See Tex.R.App.P. 52.10(a). On December 10, 2003, we handed down an Order that stayed "all further proceedings in the trial court, subject to further order of this court." On December 24, 2003, we handed down an Amended Order for Temporary Relief, in which we limited the stay to that part of the trial court's order restricting Andrea's right to establish the primary residence of the children, and otherwise permitted the court to enforce its order. A court of appeals may grant temporary relief only pending the court's action on a petition in an extraordinary proceeding. Id. Since we dismiss the petition, we now lift those stays.