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In re Emerson

Court of Appeals of Texas, Twelfth District, Tyler

October 17, 2019

IN RE: PHILIP J. EMERSON, JR.,

          ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          GREG NEELEY JUSTICE

         Philip 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.[1] We deny the writ.

         Background

         Judge 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 judge.

         Emerson 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.[2] 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 followed.

         Prerequisites to Mandamus

         Mandamus 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. proceeding.).

         Availability of Mandamus

         Emerson 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.

         However, 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 his case.[3]

          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.

         Nor 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, ...


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