Jurisdictional limitation applies when case is transferred from one Court of Appeals to another - In re M.E.H. (Tex.App. - Houston, Oct. 9, 2018)

Jurisdictional limitation applies when Texas Supreme Court transfers appeal from one COA to another for docket-equalization purposes 

In re M.E.H., Nos. 14-18-00675-CV and 14-18-00680-CV (Tex.App. – Houston [14^th Dist.] Oct. 9, 2018) (superseding mem. op., prior order withdrawn). 

It makes perfect sense for the Texas Supreme Court to even out the dockets among the 14 courts of appeals with transfers orders that send batches of cases from overworked appellate courts to those with spare capacity due to lower demand. To the extent there are inter-jurisdictional differences in the caselaw of different appellate courts and their respective districts, the conflict is addressed by the rule that the receiving COA is to apply the binding precedents of the sending COA. But that does not address all contingencies.

Example of SCOTX Order Transferring Appeals Cases 

Occasionally, a court of appeals faces the issue of whether a nonviable attempted appeal from an interlocutory or otherwise non-appealable order should be deemed a petition for mandamus relief instead.

In a recent family law dispute transferred from the Third Court of Appeals in Austin, the Fourteenth Court of Appeals in Houston concluded that doing so was not an option because the attempted appeals had not originated from its own appellate district (which is coextensive with the First Appellate District) and that it had no mandamus jurisdiction over the judge in Travis County who had signed the challenged orders. That court is outside the appellate district of the two Houston-based courts of appeals. Mandamus jurisdiction apparently did not piggyback onto and travel with the Supreme Court’s docket equalization transfer order that sent the underlying cases to Houston.

Order filed September 27, 2018, Withdrawn; Appeals Dismissed; and Memorandum Opinion filed October 9, 2018.

In The

Fourteenth Court of Appeals

NO. 14-18-00675-CV NO. 14-18-00680-CV

IN THE INTEREST OF M. E. H.

On Appeal from the 345th District Court

Travis County, Texas

Trial Court Cause No. D-1-AG-15-002375

MEMORANDUM OPINION

We withdraw our order dated September 27, 2018.

Appellant C.H. is involved in litigation in Travis County regarding conservatorship of her son, M.E.H. She appealed to the Third Court of Appeals from a final order signed February 2, 2018, called “Order in Suit to Modify Parent-Child Relationship.” The Supreme Court of Texas transferred that appeal to this court on April 11, 2018. See Tex. Gov’t Code Ann. § 73.001. That appeal is pending as number 14-18-00281-CV (“the First Appeal”).

The trial court signed several more orders during the pendency of the First Appeal. Appellant filed pro se notices of appeal from four of those orders, and each appeal was transferred from the Third Court of Appeals to this court as follows:

14-18-00675-CV	May 10, 2018 Order on Motion for Enforcement and Further Orders (regarding C.H.’s Third Amended Motion for Enforcement and Further Orders)
14-18-00680-CV	May 10, 2018 Order on Motion to Revoke Suspension of Commitment (regarding S.K.’s Motion to Revoke Suspension of Commitment)
14-18-00681-CV	May 10, 2018 Order on Motion to Modify Judgment (regarding C.H.’s Motion to Modify Judgment)
14-18-00682-CV	July 9, 2018 Amended Order (regarding June 12, 2018 Order on Respondent’s Plea of Abatement)

None of those four orders is a final judgment or otherwise separately appealable.

For that reason, we notified the parties on August 28, 2018, that we would dismiss those four appeals for lack of jurisdiction unless any party demonstrated meritorious grounds for retaining the appeals.

In response, appellant, through a newly-retained lawyer, filed a motion in the First Appeal characterizing the orders at issue in appeals 14-18-00675-CV and 14-18-00680-CV (“the Contempt Appeals”) as orders refusing to hold the father (appellee S.K.) in contempt and holding appellant in contempt, respectively. Contempt orders are not appealable but are reviewable by mandamus. In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (per curiam); Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985) (per curiam). The motion asks us to (1) treat appellant’s pro se notices of appeal in the Contempt Appeals as attempts to invoke our mandamus jurisdiction, and (2) consolidate the Contempt Appeals and the First Appeal.1

Section 22.221 of the Texas Government Code establishes our mandamus jurisdiction. A court of appeals may issue a writ of mandamus against, as relevant here, “a judge of a district, statutory county, statutory probate county, or county court in the court of appeals district[.]” Tex. Gov’t Code Ann. § 22.221(b)(1). We lack jurisdiction to issue a writ of mandamus against the trial judge in this case because she is the judge of the 345th District Court of Travis County, which lies outside our district. Id. § 22.201(d) (stating Travis County lies within Third Court of Appeals District). If appellant were to seek mandamus relief from this court, we would not have jurisdiction to grant that relief.

In conclusion, we lack jurisdiction over these appeals, and we would lack jurisdiction to grant mandamus relief if we were to construe the notices of appeal as attempts to invoke our mandamus jurisdiction. Accordingly, the appeals are dismissed.

PER CURIAM

Panel consists of Justices Christopher, Jamison, and Brown.

1 The motion also abandons appeals 14-18-00681-CV and 14-18-00681-CV (“the Abandoned Appeals”). We construed that abandonment as a motion for voluntary dismissal under Texas Rule of Appellate Procedure 42.1(a)(1) and dismissed the Abandoned Appeals on September 18, 2018. In re M.E.H., Nos. 14-18-00681-CV, 14-18-00682-CV, 2018 WL 4427486 (Tex. App.—Houston [14th Dist.] Sept. 18, 2018, no pet. h.) (mem. op.) (per curiam).

Keywords: docket equalization, case-transfer among intermediate Texas courts of appeals, split of authority among appellate courts, precedents