In re State of Texas , No. 03-08-00075-CV (Tex.App.- Austin, Feb. 23, 2008)(Opinion by Justice Henson) (mandmamus by state in criminal case) (Before Justices Patterson, Puryear and Henson)
Appeal from 299th District Court of Travis County
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
Relator State of Texas filed a petition for writs of mandamus and prohibition challenging the trial court's order compelling the State to surrender possession of certain evidence to the defendant, real party in interest Trent Stewart. We conditionally grant the writ of mandamus.
This original proceeding arises from a prosecution against Stewart for aggravated robbery with a deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(2) (West 2003). Stewart pleaded guilty and was assessed punishment of twenty-five years' imprisonment. The district court later determined that the sentence was excessive and disproportionate and communicated to the parties that it would grant the defendant's motion for a new trial as to punishment. The motion for new trial was granted, and the State appealed. While the district court proceedings were stayed pending resolution of the State's appeal to this Court, the district court issued the order that is the subject of this petition.
In a hearing on matters concerning Stewart's bond, the district court orally ordered the State to return to Stewart his driver's license, social security card, and Veteran's Affairs card, all of which were in Stewart's wallet found at the scene of the robbery. The district court asserted that Stewart, in order to obtain employment and health insurance consistent with the terms of his bond, required his original identification cards. (1) The prosecutor refused to relinquish the original documents on the grounds that the State could not be ordered to surrender possession of critical evidence, that the district court's sua sponte order was not authorized by article 39.14 of the code of criminal procedure, (2) and that the trial court lacked jurisdiction to conduct any further proceedings because the case was on appeal. In lieu of the original documents, the State tendered photocopies of the requested items, which the prosecutor argued would be sufficient to allow Stewart to obtain employment and health insurance. The State then filed this petition to prevent the district court from enforcing its order, and we granted the State's request for an emergency stay of further proceedings in the district court pending our disposition of this petition.
To obtain relief through a writ of mandamus, a relator must establish that (1) no other adequate remedy at law is available and (2) the act he seeks to compel is ministerial in nature, rather than discretionary. Dickens v. Court of Appeals for Second Supreme Judicial Dist. of Tex., 727 S.W.2d 542, 548 (Tex. Crim. App. 1987). Mandamus may also issue if a judge acts beyond his statutory authority. State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 423 (Tex. Crim. App. 1990). The relator seeking a writ of prohibition must demonstrate that he had no other adequate remedy at law and that he is clearly entitled to the relief sought. Curry v. Wilson, 853 S.W.2d 40, 43 (Tex. Crim. App. 1993).
The State asserts that the district court acted beyond its statutory authority by ordering the State to give to the defendant material evidence in the State's custody and control. In response, Stewart argues that because the items were not ordered to be turned over pursuant to a "discovery order," article 39.14 of the code of criminal procedure is not applicable. He asserts instead that the items in question were subject to an order issued pursuant to the district court's jurisdiction over bond conditions, and therefore the district court was acting within its authority. See Farris v. State, 712 S.W.2d 512, 514 (Tex. Crim. App. 1986) (trial court's power to act ends when appellate record is filed in court of appeals, "except for matters concerning bond") (citing Duncan v. Evans, 653 S.W.2d 38, 39 (Tex. Crim. App. 1983)).
We disagree, however, that the trial court's authority to "impose reasonable conditions on bail pending the finality of [the defendant's] conviction," see Tex. Code Crim. Proc. Ann. art 44.04(c) (West 2006), allows the trial court to compel the State to relinquish evidence, above and beyond what the legislature has permitted the defendant to obtain through ordinary discovery processes. See id. art. 39.14 (upon defendant's motion, court shall order State to produce and permit inspection and copying of certain evidence in State's custody and control, but nothing in act authorizes removal of such evidence from State's possession) (emphasis added). If the district court determined that Stewart was having difficulty complying with its conditions of bond, the court had the authority to revise those conditions as to Stewart. But the district court's sua sponte order in this case requiring the State to relinquish evidence to the defendant in a pending case was not authorized under any statute; therefore, mandamus is proper. See Salinas, 784 S.W.2d at 423; State ex rel. Holmes v. Denson, 671 S.W.2d 896, 900 (Tex. Crim. App. 1984).
The State also asserts that it has no remedy at law because the code of criminal procedure does not authorize the appeal by the State of a trial court's discovery order. See Tex. Code Crim. Proc. Ann. art. 44.01 (West 2006). We express no opinion as to whether the district court's order in this case was in fact a "discovery order." Rather, because we have determined that the district court acted beyond its statutory authority, we conditionally grant the writ of mandamus and direct the trial court to vacate its order requiring the State to give to Stewart his original driver's license, social security card, and Veteran's Affairs card. The writ will issue only if the court does not comply with this opinion. See Tex. R. App. P. 52.8.
__________________________________________
Diane Henson, Justice
Before Justices Patterson, Puryear and Henson
Filed: February 22, 2008
1. The record reflects that the district court judge had previously ordered Stewart to participate in rehabilitation services at the Push-Up Foundation, a residential treatment facility. The Foundation's policies require that after fourteen days in residence, clients must apply for employment. The district court was thus concerned that without his original identification documents, Stewart could not comply with the conditions of bond.
We note, however, that according to the Texas Department of Public Safety's website, a replacement driver's license can be obtained by showing either a valid U.S. passport, two "secondary" identifying documents (such as an original or certified copy of a U.S. birth certificate or an original or certified copy of court order with name and date of birth), or a secondary identifying document and two pieces of "support identification" (e.g., school records, insurance policy, vehicle title, military records, marriage license or divorce decree, voter registration card, pilot's license, concealed handgun license, expired driver's license or identification issued by another state, or Texas Inmate Identification card). See http://www.txdps.state.tx.us (follow "Driver License FAQ" hyperlink). A replacement Social Security card can be obtained either by presenting a valid U.S. passport or by providing a U.S. birth certificate and "other documents" proving identity, such as an employee identification card, school identification card, health insurance card, U.S. military identification card, or adoption decree. See http://www.socialsecurity.gov/ss5doc.
2. Article 39.14 provides, in pertinent part:
Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents . . . or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. . . . Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.
Tex. Code Crim. Proc. Ann. art. 39.14 (West 2006).
Showing posts with label mandamus granted. Show all posts
Showing posts with label mandamus granted. Show all posts
Sunday, March 2, 2008
Mandamus granted to vacate temporary injunction
In re Church Builders Inc., Richard A. Humphrey, and Randy Beckett
03-08-00079-CV (Tex.App. - Austin, Feb. 21, 2008)(Opinion by Justice Patterson) (temporary injunction successfully challenged by petition for writ of mandamus) (Before Justices Patterson, Puryear and Henson)
Appeal from 428th District Court of Hays County
Disposition: Mandamus granted
ORIGINAL PROCEEDING FROM HAYS COUNTY
M E M O R A N D U M O P I N I O N
Relators Church Builders, Inc. (CBI), Richard A. Humphrey, and Randy Beckett bring a petition for writ of mandamus and a motion for emergency relief challenging a temporary injunction order. The trial court enjoined relators from disposing of any of their assets pending judgment and ordered relators within a few days to produce, and in some cases prepare, thirty-seven categories of documents. For the reasons that follow, we conditionally grant the writ of mandamus and motion for emergency relief and direct the trial court to vacate the temporary injunction.
This original proceeding arises out of a construction contract dispute between real party in interest Kyle United Methodist Church (KUMC) and CBI. Pursuant to a contract with KUMC, CBI agreed to construct a 6,400 square foot building for approximately $594,000. Before CBI completed construction and after KUMC made several payments for a total of $564,312, a dispute arose between the parties, CBI stopped construction, and KUMC made no further payments to CBI. KUMC thereafter brought suit alleging negligence, negligent misrepresentation, breach of contract, fraud, statutory fraud, fraud by nondisclosure, violation of the Texas Property Code, conversion, violation of the Theft Liability Act, violation of the Deceptive Trade Practices Act, and conspiracy. KUMC sought monetary damages and injunctive relief--to "enjoin and restrain [relators] from depositing, withdrawing or transferring any funds from their personal and business operating accounts."
The trial court granted a temporary restraining order on January 22 against relators preventing them from withdrawing funds from two specific accounts and from "any account where proceeds were deposited from the [KUMC] project." The trial court also ordered relators to produce five categories of documents by January 28, and to appear before the court on January 31 to show cause why a temporary injunction should not be issued.
At the temporary injunction hearing on January 31, Beckett, CBI's Chief Financial Officer, was the only relator that was served and present. (1) Beckett provided some of the documents pursuant to the TRO prior to the hearing. He testified concerning the documents that he had provided, payments CBI received and made relating to the construction of KUMC's building, and the status of construction. Beckett testified that he advised Humphrey by telephone of KUMC's suit but that he did not show Humphrey a copy of KUMC's petition. Harold Dailey, the pastor of KUMC, also testified at the hearing concerning the relationship and dispute between the parties and the status of payments and construction. Dailey estimated that the building was approximately fifty percent complete when CBI stopped construction.
At the conclusion of the hearing, the trial court entered a temporary injunction. The trial court enjoined relators, Amy Humphrey, and the Humphrey Family Revocable Trust (2) from withdrawing or spending any funds in their possession until judgment:
IT IS, THEREFORE, ORDERED that Defendants are commanded forthwith to desist and refrain from the following actions until judgment in this cause is rendered by this Court:
a. Withdrawing any funds from the date of this order from the Citizens National Bank of Texas Account No. 040110312;
b. Withdrawing any funds from the date of this order from the JP Morgan Chase Account No. 740595384;
c. Withdrawing any funds from any account where Church Builders, Inc., Church Contractors, Inc., Randy Beckett, Richard Humphrey, Amy D. Humphrey, and/or Humphrey Family Revocable Trust is an owner or signer on the bank account;
d. Transferring, spending or encumbering any funds currently in the possession of Church Builders, Inc., Church Contractors, Inc., Randy Beckett, Richard Humphrey, Amy D. Humphrey, and/or Humphrey Family Revocable Trust; and
e. Transferring, selling or encumbering any real or personal property owned or in the possession of Church Builders, Inc., Church Contractors, Inc., Randy Beckett, Richard Humphrey, Amy D. Humphrey, and/or Humphrey Family Revocable Trust.
The trial court also ordered relators and Amy Humphrey to take certain actions, including to produce, and in some instances to prepare, thirty-seven categories of documents by February 6 and to appear for their depositions within thirty days of the order. (3) Relators thereafter brought this petition for writ of mandamus and motion for emergency relief.
Relators contend that they do not have an adequate remedy by way of appeal and seek emergency relief because the trial court abused its discretion and compliance with the temporary injunction subjects relators to "immediate risk of financial loss." Relators contend that because all of their business and personal bank accounts are frozen, they are enjoined from even buying groceries. They also contend that the order requires extensive discovery production in an impossibly short period of time.
Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and when there is no adequate remedy on appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Because the injunction at issue here has an immediate financial effect on relators and may cause irreparable harm, the situation before us "involv[es] manifest and urgent necessity," and we conclude the relators do not have an adequate remedy on appeal. (4) See Walker, 827 S.W.2d at 840; see also In re Argyll Equities, LLC, 227 S.W.3d 268, 273 (Tex. App.--San Antonio 2007, no pet.) (petition for writ of mandamus conditionally granted vacating writ of attachment that froze assets needed to meet present operating costs). We, therefore, turn to whether the trial court clearly abused its discretion in granting the temporary injunction to entitle relators to mandamus relief.
The purpose of a temporary injunction is to preserve the status quo until a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). "Status quo is defined as 'the last, actual, peaceable, noncontested status which preceded the pending controversy.'" Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 577 (Tex. App.--Austin 2000, no pet.) (quoting Transport Co. v. Robertson Transports, Inc., 261 S.W.2d 549, 553-54 (1953)). Because the decision whether to grant or deny a request for a temporary injunction is within the trial court's discretion, we must view the evidence in the light most favorable to the trial court's order, indulging every reasonable inference in its favor, and determine whether the order was so arbitrary that it exceeds the bounds of reasonable discretion. Id. at 576.
To obtain a temporary injunction, KUMC was required to plead and prove a cause of action against relators, a probable right to the relief sought, and "a probable, imminent, and irreparable injury in the interim." Butnaru, 84 S.W.3d at 204. Relators' challenge is to the third element. Relators contend that because KUMC can be compensated adequately in damages, and there was no evidence that relators are insolvent, that the trial court abused its discretion by granting injunctive relief pending the trial on the merits.
"An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard." Id.; see also Telephone Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 610-11 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (applicant must show that the defendant is incapable of responding in damages or damages are incapable of calculation to support injunctive relief). KUMC does not contend that its damages are incapable of calculation, and it did not provide evidence that KUMC cannot be adequately compensated in damages. (5) See also LeFaucheur v. Williams, 807 S.W.2d 20, 22-23 (Tex. App.--Austin 1991, no writ) (applicant generally must demonstrate either defendant insolvent or applicant's injury not compensable in money damages to support temporary injunctive relief). KUMC pleaded that relators "in all likelihood" are "financially distressed," but it did not provide proof that relators were incapable of responding in damages, i.e., that they were insolvent. KUMC provided evidence of two disputes between two other churches and Church Contractors, Inc., a separate but related company, but this evidence does not support an inference that CBI, or any of the individual relators, is insolvent and unable to pay a judgment.
We conclude that the trial court clearly abused its discretion by enjoining relators pending judgment and that relators do not have an adequate remedy on appeal. (6) We, therefore, conditionally grant the writ and motion for emergency relief. The writ will issue only if the trial court does not comply with this opinion.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Filed: February 21, 2008
1. Humphrey, individually and as the registered agent for CBI, was not served at the time of the hearing. KUMC provided an affidavit from a service processor showing several attempts to serve Humphrey, and the court granted a motion for substituted service on Humphrey at the conclusion of the injunction hearing. Service was effected on Humphrey the day after the hearing.
2. Amy Humphrey is employed by CBI and was added as a party by KUMC in a second amended petition that was filed January 31--the day of the hearing. She was not served prior to the hearing, and the record is unclear what her relationship is to relators. Similarly, the record is unclear what the Humphrey Family Revocable Trust's role is in the dispute, and the trust was not added as a party.
3. The trial court granted the injunctive relief requested in KUMC's second amended petition. According to the record, KUMC filed its amended petition on the day of the hearing. KUMC did not provide relators with a copy of the amended petition prior to the hearing, and Beckett, the only relator present, was not aware that KUMC had filed an amended petition seeking greater injunctive relief until the hearing was complete.
4. Because a party may bring an interlocutory appeal from a temporary injunction, there is generally an adequate remedy on appeal, and mandamus is not an available remedy. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(4) (West Supp. 2007).
5. KUMC did not plead or seek an injunction pursuant to the Uniform Fraudulent Transfer Act. See Tex. Bus. & Com. Code Ann. § 24.008 (West 2002) (injunctive relief available in action under this title against "further disposition by the debtor or transferee, or both, of the asset transferred or of other property"); see also Telephone Equip. Network, Inc., v. TA/Westchase, Ltd., 80 S.W.3d 601, 610 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (temporary injunction under the Uniform Fraudulent Transfer Act prohibiting party from disposing of assets not an improper pre-judgment attachment of assets). Nothing in this opinion prevents KUMC from amending its pleadings and seeking a temporary injunction reasonable in scope on these grounds.
6. Relators raises two other grounds to support mandamus relief. Relators contend that the trial court abused its discretion by ordering relators to prepare and produce thirty-seven categories of documents because KUMC did not show good cause for varying the discovery rules. See Tex. R. Civ. P. 191.1. Relators also contend that the trial court abused its discretion because, as to the parties enjoined, only Beckett had been served, and in any event, relators were not given notice and an opportunity to be heard as to the relief KUMC requested in the second amended petition. See Tex. R. Civ. P. 681. Because we conclude the trial court abused its discretion in ordering injunctive relief and conditionally grant the writ vacating the injunction, we need not address Relators' other grounds for relief.
03-08-00079-CV (Tex.App. - Austin, Feb. 21, 2008)(Opinion by Justice Patterson) (temporary injunction successfully challenged by petition for writ of mandamus) (Before Justices Patterson, Puryear and Henson)
Appeal from 428th District Court of Hays County
Disposition: Mandamus granted
ORIGINAL PROCEEDING FROM HAYS COUNTY
M E M O R A N D U M O P I N I O N
Relators Church Builders, Inc. (CBI), Richard A. Humphrey, and Randy Beckett bring a petition for writ of mandamus and a motion for emergency relief challenging a temporary injunction order. The trial court enjoined relators from disposing of any of their assets pending judgment and ordered relators within a few days to produce, and in some cases prepare, thirty-seven categories of documents. For the reasons that follow, we conditionally grant the writ of mandamus and motion for emergency relief and direct the trial court to vacate the temporary injunction.
This original proceeding arises out of a construction contract dispute between real party in interest Kyle United Methodist Church (KUMC) and CBI. Pursuant to a contract with KUMC, CBI agreed to construct a 6,400 square foot building for approximately $594,000. Before CBI completed construction and after KUMC made several payments for a total of $564,312, a dispute arose between the parties, CBI stopped construction, and KUMC made no further payments to CBI. KUMC thereafter brought suit alleging negligence, negligent misrepresentation, breach of contract, fraud, statutory fraud, fraud by nondisclosure, violation of the Texas Property Code, conversion, violation of the Theft Liability Act, violation of the Deceptive Trade Practices Act, and conspiracy. KUMC sought monetary damages and injunctive relief--to "enjoin and restrain [relators] from depositing, withdrawing or transferring any funds from their personal and business operating accounts."
The trial court granted a temporary restraining order on January 22 against relators preventing them from withdrawing funds from two specific accounts and from "any account where proceeds were deposited from the [KUMC] project." The trial court also ordered relators to produce five categories of documents by January 28, and to appear before the court on January 31 to show cause why a temporary injunction should not be issued.
At the temporary injunction hearing on January 31, Beckett, CBI's Chief Financial Officer, was the only relator that was served and present. (1) Beckett provided some of the documents pursuant to the TRO prior to the hearing. He testified concerning the documents that he had provided, payments CBI received and made relating to the construction of KUMC's building, and the status of construction. Beckett testified that he advised Humphrey by telephone of KUMC's suit but that he did not show Humphrey a copy of KUMC's petition. Harold Dailey, the pastor of KUMC, also testified at the hearing concerning the relationship and dispute between the parties and the status of payments and construction. Dailey estimated that the building was approximately fifty percent complete when CBI stopped construction.
At the conclusion of the hearing, the trial court entered a temporary injunction. The trial court enjoined relators, Amy Humphrey, and the Humphrey Family Revocable Trust (2) from withdrawing or spending any funds in their possession until judgment:
IT IS, THEREFORE, ORDERED that Defendants are commanded forthwith to desist and refrain from the following actions until judgment in this cause is rendered by this Court:
a. Withdrawing any funds from the date of this order from the Citizens National Bank of Texas Account No. 040110312;
b. Withdrawing any funds from the date of this order from the JP Morgan Chase Account No. 740595384;
c. Withdrawing any funds from any account where Church Builders, Inc., Church Contractors, Inc., Randy Beckett, Richard Humphrey, Amy D. Humphrey, and/or Humphrey Family Revocable Trust is an owner or signer on the bank account;
d. Transferring, spending or encumbering any funds currently in the possession of Church Builders, Inc., Church Contractors, Inc., Randy Beckett, Richard Humphrey, Amy D. Humphrey, and/or Humphrey Family Revocable Trust; and
e. Transferring, selling or encumbering any real or personal property owned or in the possession of Church Builders, Inc., Church Contractors, Inc., Randy Beckett, Richard Humphrey, Amy D. Humphrey, and/or Humphrey Family Revocable Trust.
The trial court also ordered relators and Amy Humphrey to take certain actions, including to produce, and in some instances to prepare, thirty-seven categories of documents by February 6 and to appear for their depositions within thirty days of the order. (3) Relators thereafter brought this petition for writ of mandamus and motion for emergency relief.
Relators contend that they do not have an adequate remedy by way of appeal and seek emergency relief because the trial court abused its discretion and compliance with the temporary injunction subjects relators to "immediate risk of financial loss." Relators contend that because all of their business and personal bank accounts are frozen, they are enjoined from even buying groceries. They also contend that the order requires extensive discovery production in an impossibly short period of time.
Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and when there is no adequate remedy on appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Because the injunction at issue here has an immediate financial effect on relators and may cause irreparable harm, the situation before us "involv[es] manifest and urgent necessity," and we conclude the relators do not have an adequate remedy on appeal. (4) See Walker, 827 S.W.2d at 840; see also In re Argyll Equities, LLC, 227 S.W.3d 268, 273 (Tex. App.--San Antonio 2007, no pet.) (petition for writ of mandamus conditionally granted vacating writ of attachment that froze assets needed to meet present operating costs). We, therefore, turn to whether the trial court clearly abused its discretion in granting the temporary injunction to entitle relators to mandamus relief.
The purpose of a temporary injunction is to preserve the status quo until a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). "Status quo is defined as 'the last, actual, peaceable, noncontested status which preceded the pending controversy.'" Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 577 (Tex. App.--Austin 2000, no pet.) (quoting Transport Co. v. Robertson Transports, Inc., 261 S.W.2d 549, 553-54 (1953)). Because the decision whether to grant or deny a request for a temporary injunction is within the trial court's discretion, we must view the evidence in the light most favorable to the trial court's order, indulging every reasonable inference in its favor, and determine whether the order was so arbitrary that it exceeds the bounds of reasonable discretion. Id. at 576.
To obtain a temporary injunction, KUMC was required to plead and prove a cause of action against relators, a probable right to the relief sought, and "a probable, imminent, and irreparable injury in the interim." Butnaru, 84 S.W.3d at 204. Relators' challenge is to the third element. Relators contend that because KUMC can be compensated adequately in damages, and there was no evidence that relators are insolvent, that the trial court abused its discretion by granting injunctive relief pending the trial on the merits.
"An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard." Id.; see also Telephone Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 610-11 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (applicant must show that the defendant is incapable of responding in damages or damages are incapable of calculation to support injunctive relief). KUMC does not contend that its damages are incapable of calculation, and it did not provide evidence that KUMC cannot be adequately compensated in damages. (5) See also LeFaucheur v. Williams, 807 S.W.2d 20, 22-23 (Tex. App.--Austin 1991, no writ) (applicant generally must demonstrate either defendant insolvent or applicant's injury not compensable in money damages to support temporary injunctive relief). KUMC pleaded that relators "in all likelihood" are "financially distressed," but it did not provide proof that relators were incapable of responding in damages, i.e., that they were insolvent. KUMC provided evidence of two disputes between two other churches and Church Contractors, Inc., a separate but related company, but this evidence does not support an inference that CBI, or any of the individual relators, is insolvent and unable to pay a judgment.
We conclude that the trial court clearly abused its discretion by enjoining relators pending judgment and that relators do not have an adequate remedy on appeal. (6) We, therefore, conditionally grant the writ and motion for emergency relief. The writ will issue only if the trial court does not comply with this opinion.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Filed: February 21, 2008
1. Humphrey, individually and as the registered agent for CBI, was not served at the time of the hearing. KUMC provided an affidavit from a service processor showing several attempts to serve Humphrey, and the court granted a motion for substituted service on Humphrey at the conclusion of the injunction hearing. Service was effected on Humphrey the day after the hearing.
2. Amy Humphrey is employed by CBI and was added as a party by KUMC in a second amended petition that was filed January 31--the day of the hearing. She was not served prior to the hearing, and the record is unclear what her relationship is to relators. Similarly, the record is unclear what the Humphrey Family Revocable Trust's role is in the dispute, and the trust was not added as a party.
3. The trial court granted the injunctive relief requested in KUMC's second amended petition. According to the record, KUMC filed its amended petition on the day of the hearing. KUMC did not provide relators with a copy of the amended petition prior to the hearing, and Beckett, the only relator present, was not aware that KUMC had filed an amended petition seeking greater injunctive relief until the hearing was complete.
4. Because a party may bring an interlocutory appeal from a temporary injunction, there is generally an adequate remedy on appeal, and mandamus is not an available remedy. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(4) (West Supp. 2007).
5. KUMC did not plead or seek an injunction pursuant to the Uniform Fraudulent Transfer Act. See Tex. Bus. & Com. Code Ann. § 24.008 (West 2002) (injunctive relief available in action under this title against "further disposition by the debtor or transferee, or both, of the asset transferred or of other property"); see also Telephone Equip. Network, Inc., v. TA/Westchase, Ltd., 80 S.W.3d 601, 610 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (temporary injunction under the Uniform Fraudulent Transfer Act prohibiting party from disposing of assets not an improper pre-judgment attachment of assets). Nothing in this opinion prevents KUMC from amending its pleadings and seeking a temporary injunction reasonable in scope on these grounds.
6. Relators raises two other grounds to support mandamus relief. Relators contend that the trial court abused its discretion by ordering relators to prepare and produce thirty-seven categories of documents because KUMC did not show good cause for varying the discovery rules. See Tex. R. Civ. P. 191.1. Relators also contend that the trial court abused its discretion because, as to the parties enjoined, only Beckett had been served, and in any event, relators were not given notice and an opportunity to be heard as to the relief KUMC requested in the second amended petition. See Tex. R. Civ. P. 681. Because we conclude the trial court abused its discretion in ordering injunctive relief and conditionally grant the writ vacating the injunction, we need not address Relators' other grounds for relief.
Tuesday, August 21, 2007
Third Court of Appeals enforces forum selection and choice-of-law clause in licensing agreement; grants mandamus in suit against software company
In re Onsite Software, Inc, No. 03-07-00351-CV (Tex.App.- Austin, Aug. 17, 2007)(Opinion by Justice Henson)(contractual forum selection clause enforced by mandamus) (Before Chief Justice Law, Justices Puryear and Henson)
Appeal from County Court at Law No. 1 of Travis County
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
The trial court denied a motion to enforce a contractual provision requiring the parties to litigate all disputes in New Jersey. The Texas Supreme Court has held that failure to enforce such an agreement "constitutes a clear abuse of discretion for which there is no adequate remedy by appeal." In re Automated Collection Techs. Inc., 156 S.W.3d 557, 558 (Tex. 2004). As a result, we conditionally grant Ace's petition for writ of mandamus directing the trial court to dismiss this case.
On December 8, 2006, Ace Fire Equipment Co. sued Onsite Software, Inc. for breach of contract, common-law fraud, violations of the Texas Deceptive Trade Practices Act, and declaratory judgment--all arising from a license agreement providing for the use and support of a software product. The license agreement in question contains a forum-selection provision, subsection 12(d), which states:
This license agreement is governed and construed in accordance with the laws of the state of New Jersey. It is agreed that the exclusive jurisdiction with regard to any dispute arising out of this Agreement are [sic] the state and federal courts located there.
Ace filed suit in Travis County, Texas, and Onsite subsequently filed a motion to dismiss based on the foregoing forum-selection clause. The trial court held a hearing on the motion to dismiss on May 30, 2007. Ace filed no response to Onsite's motion and did not submit documents or affidavits in opposition to the motion at the hearing. The trial court overruled the motion to dismiss, and Onsite now seeks mandamus relief from this Court.
In In re AIU Insurance Co., 148 S.W.3d 109 (Tex. 2004), the Texas Supreme Court held that enforcement of forum-selection clauses is mandatory unless the party opposing enforcement "clearly show[s] that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching." Id. at 112 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)).
Ace has not submitted evidence showing that enforcement of the clause would be unreasonable and does not assert that the clause is invalid. As a result, the trial court was required to enforce the forum-selection clause. Because the court failed to do so, mandamus relief is warranted. See id. at 120 (holding that mandamus relief is proper avenue for enforcing forum-selection clauses because there is no adequate remedy by appeal).
Ace contends that Onsite's petition for writ of mandamus should be denied because Onsite failed to include a statement that no testimony was adduced at the hearing on its motion to dismiss, as required by Texas Rule of Appellate Procedure 52.7(a). However, because Onsite has supplemented the record, as permitted by Texas Rule of Appellate Procedure 52.7(b), to include a statement that no testimony was adduced at the hearing, we will not deny Onsite's petition on such grounds.
Ace also argues that at the hearing on the motion to dismiss, Onsite failed to present evidence of the threshold issue that the parties had consented to a forum-selection clause. We disagree.
Prior to the hearing, Onsite filed the affidavit of Michael Paolini, the president of Onsite, in support of its motion to dismiss. This affidavit included both the license agreement and a related software proposal as exhibits. The affidavit, the license agreement, and the software proposal could each be considered evidence suggesting that the parties consented to a forum-selection clause. The trial court's order on Onsite's motion to dismiss states that "after reviewing the papers and pleadings on file in this matter and hearing argument of counsel," the court finds that the motion should be overruled. The order indicates that Paolini's affidavit, as well as the license agreement and software proposal, were reviewed by the trial court in relation to the motion to dismiss.
Ace argues that the forum-selection clause does not apply to the instant case because the underlying dispute does not arise from the license agreement, but from an agreement between Ace and Onsite for both software products and integration and consulting services. Ace asserts that this agreement is evidenced by the software proposal sent to Ace by Onsite and attached to Paolini's affidavit. This proposal, titled "Life Safety Inspector Software Proposal," includes the statement, "Purchase is subject to our standard software license agreement." The proposal also notes that "[i]ntegration and professional services are a key part of making [the software] effective for your company." It is clear from the software proposal that the agreement in question is primarily an agreement concerning the software, and any ancillary services provided will be related to use of the software. Subsection 12(a) of the license agreement states,
"This written license agreement is the exclusive agreement between you and us concerning the Software and Documentation and supersedes any and all prior oral or written agreements, negotiations or other dealings between us concerning the Software." The license agreement also states in section 10 that it covers "support and updates to the software." Because the license agreement by its terms is clearly the sole written agreement between Ace and Onsite, covering both software products and related services, we hold that the forum-selection clause in subsection 12(d) of the license agreement applies to the underlying dispute.
For the foregoing reasons, we conditionally grant Onsite's petition for writ of mandamus directing the trial court to dismiss this case. Writ will issue only in the unlikely event that the trial court does not act in accordance with this opinion.
__________________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Filed: August 17, 2007
Appeal from County Court at Law No. 1 of Travis County
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
The trial court denied a motion to enforce a contractual provision requiring the parties to litigate all disputes in New Jersey. The Texas Supreme Court has held that failure to enforce such an agreement "constitutes a clear abuse of discretion for which there is no adequate remedy by appeal." In re Automated Collection Techs. Inc., 156 S.W.3d 557, 558 (Tex. 2004). As a result, we conditionally grant Ace's petition for writ of mandamus directing the trial court to dismiss this case.
On December 8, 2006, Ace Fire Equipment Co. sued Onsite Software, Inc. for breach of contract, common-law fraud, violations of the Texas Deceptive Trade Practices Act, and declaratory judgment--all arising from a license agreement providing for the use and support of a software product. The license agreement in question contains a forum-selection provision, subsection 12(d), which states:
This license agreement is governed and construed in accordance with the laws of the state of New Jersey. It is agreed that the exclusive jurisdiction with regard to any dispute arising out of this Agreement are [sic] the state and federal courts located there.
Ace filed suit in Travis County, Texas, and Onsite subsequently filed a motion to dismiss based on the foregoing forum-selection clause. The trial court held a hearing on the motion to dismiss on May 30, 2007. Ace filed no response to Onsite's motion and did not submit documents or affidavits in opposition to the motion at the hearing. The trial court overruled the motion to dismiss, and Onsite now seeks mandamus relief from this Court.
In In re AIU Insurance Co., 148 S.W.3d 109 (Tex. 2004), the Texas Supreme Court held that enforcement of forum-selection clauses is mandatory unless the party opposing enforcement "clearly show[s] that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching." Id. at 112 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)).
Ace has not submitted evidence showing that enforcement of the clause would be unreasonable and does not assert that the clause is invalid. As a result, the trial court was required to enforce the forum-selection clause. Because the court failed to do so, mandamus relief is warranted. See id. at 120 (holding that mandamus relief is proper avenue for enforcing forum-selection clauses because there is no adequate remedy by appeal).
Ace contends that Onsite's petition for writ of mandamus should be denied because Onsite failed to include a statement that no testimony was adduced at the hearing on its motion to dismiss, as required by Texas Rule of Appellate Procedure 52.7(a). However, because Onsite has supplemented the record, as permitted by Texas Rule of Appellate Procedure 52.7(b), to include a statement that no testimony was adduced at the hearing, we will not deny Onsite's petition on such grounds.
Ace also argues that at the hearing on the motion to dismiss, Onsite failed to present evidence of the threshold issue that the parties had consented to a forum-selection clause. We disagree.
Prior to the hearing, Onsite filed the affidavit of Michael Paolini, the president of Onsite, in support of its motion to dismiss. This affidavit included both the license agreement and a related software proposal as exhibits. The affidavit, the license agreement, and the software proposal could each be considered evidence suggesting that the parties consented to a forum-selection clause. The trial court's order on Onsite's motion to dismiss states that "after reviewing the papers and pleadings on file in this matter and hearing argument of counsel," the court finds that the motion should be overruled. The order indicates that Paolini's affidavit, as well as the license agreement and software proposal, were reviewed by the trial court in relation to the motion to dismiss.
Ace argues that the forum-selection clause does not apply to the instant case because the underlying dispute does not arise from the license agreement, but from an agreement between Ace and Onsite for both software products and integration and consulting services. Ace asserts that this agreement is evidenced by the software proposal sent to Ace by Onsite and attached to Paolini's affidavit. This proposal, titled "Life Safety Inspector Software Proposal," includes the statement, "Purchase is subject to our standard software license agreement." The proposal also notes that "[i]ntegration and professional services are a key part of making [the software] effective for your company." It is clear from the software proposal that the agreement in question is primarily an agreement concerning the software, and any ancillary services provided will be related to use of the software. Subsection 12(a) of the license agreement states,
"This written license agreement is the exclusive agreement between you and us concerning the Software and Documentation and supersedes any and all prior oral or written agreements, negotiations or other dealings between us concerning the Software." The license agreement also states in section 10 that it covers "support and updates to the software." Because the license agreement by its terms is clearly the sole written agreement between Ace and Onsite, covering both software products and related services, we hold that the forum-selection clause in subsection 12(d) of the license agreement applies to the underlying dispute.
For the foregoing reasons, we conditionally grant Onsite's petition for writ of mandamus directing the trial court to dismiss this case. Writ will issue only in the unlikely event that the trial court does not act in accordance with this opinion.
__________________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Filed: August 17, 2007
Monday, June 25, 2007
In re Kelly James Stinson (Tex.App.-Austin, Jun 11, 2007)
In re Kelly James Stinson (Tex.App.-Austin, Jun 11, 2007)(Puryear)(mandamus)
CONDITIONALLY GRANTED: Opinion by Justice Puryear
Before Chief Justice Law, Justices Puryear and Henson)
03-06-00633-CV
In re Kelly James Stinson
Appeal from 261st District Court of Travis County
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
Kelly James Stinson is an inmate in the Neal Unit of the Texas Department of Criminal Justice-Correctional Institutions Division. He has petitioned this Court for a writ of mandamus to compel the Honorable Lora J. Livingston, Judge of the 261st District Court of Travis County to consider and rule on motions pending in cause number GN503850, Kelly Stinson v. Director of Texas Board of Pardons and Paroles. Cause number GN503850 is itself a mandamus proceeding by which Stinson seeks to compel the Director to rule on Stinson's request to correct his administrative release hearing report and to comply with an open records request.
We summarize the procedural history of cause number GN503850 as it is reflected in Stinson's petition to this Court and in the response to the petition filed by counsel for the Director as the real party in interest. Stinson filed his district court mandamus petition in October 2005, and has since filed several related motions, including a motion to compel discovery and a motion for sanctions. The Director filed a motion to dismiss in January 2006 and an amended motion to dismiss in May 2006.
On March 7, 2006, the district clerk filed Stinson's motion for hearing by conference call. On March 21, the court administrator wrote Stinson a letter acknowledging his request for a hearing and requesting additional information. The administrator enclosed with his letter a copy of the local court rules. These rules provide that hearings conducted by telephone are held on Thursdays at 2:00 p.m. Such hearings are to last no more than 30 minutes and may not require witness testimony or the presentation of documentary evidence.
By a letter dated May 9, 2006, Stinson requested a hearing by telephone on his motion to compel. The court administrator has no record of receiving this letter, but a copy of the letter was received by the district clerk on May 12. The requested setting was at 9:00 a.m. on Monday, May 15, 2006.
By a letter dated June 20, 2006, Stinson requested a hearing by telephone on his motions to compel and for sanctions at 9:00 a.m. on any date between July 3 and July 14, 2006. The letter was received by the court administrator on July 19, 2006.
By a letter dated July 28, 2006, Stinson requested a hearing by telephone on his motions to compel and for sanctions at 2:00 p.m. on Thursday, August 17, 2006. The real party in interest states that there is no record of this letter in the court's file.
Whether to consider and rule on a motion is not a matter of the trial court's discretion; rather, when a motion is properly filed and pending before the court, the act of considering and resolving it is ministerial. Ex parte Bates, 65 S.W.3d 133, 134-35 Tex. App.--Amarillo 2001,orig. proceeding). The court has a reasonable time within which to perform this ministerial duty, and whether this period has lapsed is dependent on the circumstances of each case. Id. at 135. Among the relevant factors are the trial court's actual knowledge of the motion, its overt refusal to act on same, the state of the court's docket, and the existence of other matters that must be addressed first. Id.
The real party in interest asserts that Stinson has not properly requested a hearing. We agree that Stinson's March, May, and June hearing requests did not comply with the local court rules. The real party in interest argues that Stinson's July 28 hearing request also did not comply with the local rules because it indicated that the court should initiate the conference call, whereas the rules state that the call must be placed to the duty judge conducting the hearing. This contention is not correct. Instead, the letter stated (as had some of Stinson's earlier letters) that under criminal justice department policy, the court must notify the department of the hearing so that the necessary arrangements can be made for the prisoner's participation.
The real party in interest also argues that Stinson is not entitled to mandamus relief because there is no evidence that the Judge of the 261st District Court had actual knowledge of Stinson's requests for a hearing or that the Judge refused to act on these requests. The documents before us show, however, that the court administrator, acting on behalf of the Judge, has received Stinson's requests for a hearing and has failed to act.
We recognize the trial court's inherent authority to control its own docket. Id. We also acknowledge that an appellate court should not arbitrarily interfere with this control. Id. Nevertheless, the record before us demonstrates that for more than one year, Stinson has attempted to obtain a hearing on his motions in cause number GN503850. Although his earlier requests for a hearing were not in full compliance with the local rules, his most recent request appears to have conformed to the rules. (1)
The Judge of the 261st District Court of Travis County shall direct the court administrator to set a telephone hearing on Stinson's motions to compel and for sanctions on a Thursday at 2:00 p.m. no less than thirty days or more than one hundred twenty days from the date of this opinion. The court administrator shall set the hearing in coordination with the Office of the General Counsel, Texas Department of Criminal Justice, in order to secure Stinson's participation. The court administrator shall notify the parties of the hearing and the time the call should be placed to the duty judge. A writ of mandamus will issue if these instructions are not followed.
CONDITIONALLY GRANTED: Opinion by Justice Puryear
Before Chief Justice Law, Justices Puryear and Henson)
03-06-00633-CV
In re Kelly James Stinson
Appeal from 261st District Court of Travis County
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
Kelly James Stinson is an inmate in the Neal Unit of the Texas Department of Criminal Justice-Correctional Institutions Division. He has petitioned this Court for a writ of mandamus to compel the Honorable Lora J. Livingston, Judge of the 261st District Court of Travis County to consider and rule on motions pending in cause number GN503850, Kelly Stinson v. Director of Texas Board of Pardons and Paroles. Cause number GN503850 is itself a mandamus proceeding by which Stinson seeks to compel the Director to rule on Stinson's request to correct his administrative release hearing report and to comply with an open records request.
We summarize the procedural history of cause number GN503850 as it is reflected in Stinson's petition to this Court and in the response to the petition filed by counsel for the Director as the real party in interest. Stinson filed his district court mandamus petition in October 2005, and has since filed several related motions, including a motion to compel discovery and a motion for sanctions. The Director filed a motion to dismiss in January 2006 and an amended motion to dismiss in May 2006.
On March 7, 2006, the district clerk filed Stinson's motion for hearing by conference call. On March 21, the court administrator wrote Stinson a letter acknowledging his request for a hearing and requesting additional information. The administrator enclosed with his letter a copy of the local court rules. These rules provide that hearings conducted by telephone are held on Thursdays at 2:00 p.m. Such hearings are to last no more than 30 minutes and may not require witness testimony or the presentation of documentary evidence.
By a letter dated May 9, 2006, Stinson requested a hearing by telephone on his motion to compel. The court administrator has no record of receiving this letter, but a copy of the letter was received by the district clerk on May 12. The requested setting was at 9:00 a.m. on Monday, May 15, 2006.
By a letter dated June 20, 2006, Stinson requested a hearing by telephone on his motions to compel and for sanctions at 9:00 a.m. on any date between July 3 and July 14, 2006. The letter was received by the court administrator on July 19, 2006.
By a letter dated July 28, 2006, Stinson requested a hearing by telephone on his motions to compel and for sanctions at 2:00 p.m. on Thursday, August 17, 2006. The real party in interest states that there is no record of this letter in the court's file.
Whether to consider and rule on a motion is not a matter of the trial court's discretion; rather, when a motion is properly filed and pending before the court, the act of considering and resolving it is ministerial. Ex parte Bates, 65 S.W.3d 133, 134-35 Tex. App.--Amarillo 2001,orig. proceeding). The court has a reasonable time within which to perform this ministerial duty, and whether this period has lapsed is dependent on the circumstances of each case. Id. at 135. Among the relevant factors are the trial court's actual knowledge of the motion, its overt refusal to act on same, the state of the court's docket, and the existence of other matters that must be addressed first. Id.
The real party in interest asserts that Stinson has not properly requested a hearing. We agree that Stinson's March, May, and June hearing requests did not comply with the local court rules. The real party in interest argues that Stinson's July 28 hearing request also did not comply with the local rules because it indicated that the court should initiate the conference call, whereas the rules state that the call must be placed to the duty judge conducting the hearing. This contention is not correct. Instead, the letter stated (as had some of Stinson's earlier letters) that under criminal justice department policy, the court must notify the department of the hearing so that the necessary arrangements can be made for the prisoner's participation.
The real party in interest also argues that Stinson is not entitled to mandamus relief because there is no evidence that the Judge of the 261st District Court had actual knowledge of Stinson's requests for a hearing or that the Judge refused to act on these requests. The documents before us show, however, that the court administrator, acting on behalf of the Judge, has received Stinson's requests for a hearing and has failed to act.
We recognize the trial court's inherent authority to control its own docket. Id. We also acknowledge that an appellate court should not arbitrarily interfere with this control. Id. Nevertheless, the record before us demonstrates that for more than one year, Stinson has attempted to obtain a hearing on his motions in cause number GN503850. Although his earlier requests for a hearing were not in full compliance with the local rules, his most recent request appears to have conformed to the rules. (1)
The Judge of the 261st District Court of Travis County shall direct the court administrator to set a telephone hearing on Stinson's motions to compel and for sanctions on a Thursday at 2:00 p.m. no less than thirty days or more than one hundred twenty days from the date of this opinion. The court administrator shall set the hearing in coordination with the Office of the General Counsel, Texas Department of Criminal Justice, in order to secure Stinson's participation. The court administrator shall notify the parties of the hearing and the time the call should be placed to the duty judge. A writ of mandamus will issue if these instructions are not followed.
In re Manuel Barrientes (Tex.App.- Austin, Jun. 5, 2007)
MANDAMUS CONDITIONALLY GRANTED: Opinion by Justice Pemberton
(Before Chief Justice Law, Justices Puryear and Pemberton)
03-07-00318-CV
In re Manuel Barrientes
Appeal from 368th District Court of Williamson County
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
M E M O R A N D U M O P I N I O N
Manuel Barrientes has filed a petition for writs of mandamus and prohibition and a motion for temporary relief seeking to halt further proceedings in the 368th District Court of Williamson County in cause number 02-818-K368. In that cause, Barrientes pleaded guilty to aggravated assault and was placed on deferred adjudication community supervision. After the State filed a motion to adjudicate, Barrientes applied for a writ of habeas corpus complaining that he had been previously convicted for the same assault, and that his prosecution in cause number 02-818-K368 subjected him to double jeopardy. Barrientes asked for relief in the form of a discharge from supervision and dismissal of the indictment. Following a hearing on the merits of Barrientes's application, habeas corpus relief was denied. Barrientes perfected an appeal from the order denying relief, and that appeal is now pending in this Court as our cause number 03-06-00418-CR. In the instant petition and motion, Barrientes states that a hearing on the State's motion to adjudicate in cause number 02-818-K368 has been set for June 6, 2007.
Where a double jeopardy claim has been denied in an appealable order, the defendant has a right to appeal before the trial of the indictment he attacks. Ex parte Robinson, 641 S.W.2d 552, 554 (Tex. Crim. App. 1982). Although Robinson is not squarely on point, we believe that the broader principle for which it stands applies here. Barrientes's double jeopardy challenge to his continued prosecution in cause number 02-818-K368 was denied in an appealable order. Barrientes has a right to appeal that order before being exposed to further proceedings--and possible imprisonment--in that cause. Barrientes's right to appeal following an adjudication of guilt is not an adequate remedy for the asserted double jeopardy violation. See id. at 555.
The district court is obligated to hold in abeyance any further proceedings in cause number 02-818-K368 pending final disposition of Barrientes's appeal from the denial of habeas corpus relief. We are confident that the district court will comply with this obligation without the necessity of this Court issuing a writ of mandamus. The motion for temporary relief is dismissed.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Filed: June 5, 2007
(Before Chief Justice Law, Justices Puryear and Pemberton)
03-07-00318-CV
In re Manuel Barrientes
Appeal from 368th District Court of Williamson County
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
M E M O R A N D U M O P I N I O N
Manuel Barrientes has filed a petition for writs of mandamus and prohibition and a motion for temporary relief seeking to halt further proceedings in the 368th District Court of Williamson County in cause number 02-818-K368. In that cause, Barrientes pleaded guilty to aggravated assault and was placed on deferred adjudication community supervision. After the State filed a motion to adjudicate, Barrientes applied for a writ of habeas corpus complaining that he had been previously convicted for the same assault, and that his prosecution in cause number 02-818-K368 subjected him to double jeopardy. Barrientes asked for relief in the form of a discharge from supervision and dismissal of the indictment. Following a hearing on the merits of Barrientes's application, habeas corpus relief was denied. Barrientes perfected an appeal from the order denying relief, and that appeal is now pending in this Court as our cause number 03-06-00418-CR. In the instant petition and motion, Barrientes states that a hearing on the State's motion to adjudicate in cause number 02-818-K368 has been set for June 6, 2007.
Where a double jeopardy claim has been denied in an appealable order, the defendant has a right to appeal before the trial of the indictment he attacks. Ex parte Robinson, 641 S.W.2d 552, 554 (Tex. Crim. App. 1982). Although Robinson is not squarely on point, we believe that the broader principle for which it stands applies here. Barrientes's double jeopardy challenge to his continued prosecution in cause number 02-818-K368 was denied in an appealable order. Barrientes has a right to appeal that order before being exposed to further proceedings--and possible imprisonment--in that cause. Barrientes's right to appeal following an adjudication of guilt is not an adequate remedy for the asserted double jeopardy violation. See id. at 555.
The district court is obligated to hold in abeyance any further proceedings in cause number 02-818-K368 pending final disposition of Barrientes's appeal from the denial of habeas corpus relief. We are confident that the district court will comply with this obligation without the necessity of this Court issuing a writ of mandamus. The motion for temporary relief is dismissed.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Filed: June 5, 2007
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