Court of Appeals of Texas, Twelfth District, Tyler
IN RE: PHILIP J. EMERSON, JR.,
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
J. Emerson, Jr., acting pro se, filed this original
proceeding to challenge Respondent's denial of his motion
to set aside an order granting the plea to the jurisdiction
filed by the Real Party in Interest, Judge Jerry E.
Parker. We deny the writ.
Parker presides over the Justice of the Peace Court, Precinct
3, in Wood County, Texas. Emerson was charged with four
misdemeanor offenses in Judge Parker's court. On May 24,
2019, Emerson filed a motion demanding that Judge Parker
disqualify himself from the four cases. On June 27, Judge
Parker signed four orders transferring the cases to another
subsequently filed a petition for "writs of
mandamus" against Judge Parker in Respondent's
court. Although titled as a mandamus petition, Emerson
requested declaratory relief and asserted claims for
negligence, negligence per se, negligent and intentional
infliction of emotional distress, false imprisonment, civil
conspiracy, and constitutional violations, and sought
damages. Judge Parker filed a plea to the
jurisdiction on grounds that all acts complained of arise out
of judicial acts and are barred by judicial immunity.
Respondent granted the plea to the jurisdiction on August 28
and denied Emerson's motion to set aside the order
granting the plea to the jurisdiction. This proceeding
is an extraordinary remedy. In re Sw. Bell Tel. Co.,
L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig.
proceeding). A writ of mandamus will issue only when the
relator has no adequate remedy by appeal and the trial court
committed a clear abuse of discretion. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)
(orig. proceeding). The relator has the burden of
establishing both prerequisites. In re Fitzgerald,
429 S.W.3d 886, 891 (Tex. App.-Tyler 2014, orig.
contends that Respondent abused his discretion by granting
the plea to the jurisdiction. According to Emerson,
Respondent should have abated the case and given him an
opportunity to amend his petition.
Emerson admits that the order granting the plea to the
jurisdiction is final and appealable. In the August 28 order,
Respondent granted the plea to the jurisdiction and dismissed
Emerson's claims against Judge Parker, with prejudice,
for lack of jurisdiction. That same day, the Wood County
District Clerk's Office sent Emerson a "NOTICE OF
FINAL JUDGMENT OR OTHER APPEALABLE ORDER" informing him
that a "final judgment was entered and said judgment was
signed on this the 28th day of August, 2019."
Accordingly, because a final judgment has been signed,
Emerson could have filed a notice of appeal to challenge the
order granting the plea to the jurisdiction and dismissing
Mandamus is an extraordinary remedy that is available only in
limited circumstances. Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992). The granting of a plea to the
jurisdiction that disposes of all parties and claims, as in
the present case, is a final, appealable order. See Fox
v. Wardy, 318 S.W.3d 449, 452 (Tex. App.-El Paso 2010,
pet. denied). And mandamus relief is not to be used as a
substitute for appeal. See In re Devon Energy
Prod. Co., L.P., 321 S.W.3d 778, 784 (Tex. App.-Tyler
2010, orig. proceeding). Mandamus relief has occasionally
been granted after final judgment, but in unusual
circumstances. In re Energy Transfer Fuel, L.P., 298
S.W.3d 348, 352 (Tex. App.-Tyler 2009, orig. proceeding);
see Geary v. Peavy, 878 S.W.2d 602, 603
(Tex. 1994) (mandamus appropriate because of "unique and
compelling circumstances" involving conflicting child
custody orders despite the entry of a final order); see
also In re Home State County Mut. Ins. Co., No.
12-07-00062-CV, 2007 WL 1429584, at *3-4 (Tex. App.-Tyler May
16, 2007, orig. proceeding) (mem. op.) (mandamus requiring
trial court to vacate severance order rendered final judgment
interlocutory). No similar unusual or compelling facts arise
in this case.
does this proceeding qualify as the type of exceptional case
that warrants mandamus review. Mandamus review of significant
rulings in exceptional cases may be essential to preserve
important substantive and procedural rights from impairment
or loss, allow the appellate courts to give needed and
helpful direction to the law that would otherwise prove
elusive in appeals from final judgments, and spare private
parties and the public the time and money utterly wasted
enduring eventual reversal of improperly conducted
proceedings. In re Prudential Inc. Co. of Am., 148
S.W.3d 124, 136 (Tex. 2004). Whether the plea to the
jurisdiction was improperly granted, and the case dismissed
with prejudice, is an error that could be cured without
mandamus review and there is no indication that any such
error could not be made part of the appellate record. See
In re East Tex. Med. Ctr., No. 12-17-00183-CV, 2017 WL
4675511, at *2 (Tex. App.-Tyler Oct. 18, 2017, orig.
proceeding) (mem. op.). And the record does not suggest that
mandamus review is essential to give needed and helpful
direction that would otherwise prove elusive in an appeal
from the order granting the plea to the jurisdiction.
SeeIn re Prudential Inc. Co. of Am., 148
S.W.3d at 136. Because a final judgment has been signed, the
lack of mandamus review will not result in an irreversible
waste of resources. Seeid. at 137; see
alsoIn re Empower Texans, Inc., No.
03-18-00220-CV, 2018 WL 1802515, at *3 (Tex. App.- Austin
Apr. 17, 2018, ...