                                    NO. 07-04-0094-CV

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                    JUNE 1, 2004
                           ______________________________

                 In re: RODNEY WARREN, RWW ENTERPRISES, INC.,

                                      and SPSM, LTD.

                                                       Relators
                         _________________________________

                                 Original Proceeding
                          _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

       Rodney Warren, RWW Enterprises, Inc. and SPSM, Ltd. (Warren) petition the court

for a writ of mandamus to compel the Hon. Andrew J. Kupper, 99th Judicial District Court,

Lubbock County (99th), to abate various causes filed in that court pending the final

disposition of various causes filed in the 121st Judicial District Court, Terry County (121st).

We deny the petition.

       The record before us illustrates that Warren moved the 99th to abate the cases

pending therein. The trial court denied the motion. It is that action that Warren now asks

us to review through mandamus. However, it is clear that mandamus will not lie if the

relator has an adequate remedy at law. See In re State Bar, 113 S.W.3d 730, 733 (Tex.

2003). Furthermore, appeal has been recognized as such a remedy when the relator

seeks review of incidental rulings made by the trial court. Id.; Abor v. Black, 695 S.W.2d
564, 566-67 (Tex. 1985). Within the category of incidental rulings are those denying a plea

or motion to abate. Abor v. Black, 695 S.W.2d at 566-67, quoting Pope v. Ferguson, 445

S.W.2d 950 (Tex. 1969); Coastal Oil & Gas Corp. v. Flores, 908 S.W.2d 517, 518 (Tex.

App.–San Antonio 1995, orig. proceeding). Given this and the fact that Warren asks us to

review the trial court’s action viz his plea to abate, we must deny his request.

       In so holding, we do not ignore Warren’s contention that this cause falls within an

exception to the rule announced in Abor. The exception pertains to effort by one district

court to interfere with another’s jurisdiction. When that occurs, then mandamus may

indeed issue, In re State Bar, 113 S.W.3d at 734, assuming, of course, that the relator has

satisfied every other element for securing the relief. Warren believes that is occurring here

because the 121st purportedly has within its registry or custody funds that constitute part

of the dispute involved in the suits pending in the 99th.

       It is true that one court may not ordinarily interfere with property held by another

court in custodia legis. First Southern Properties, Inc. v. Vallone, 533 S.W.2d 339, 342-43

(Tex. 1976). So too is it true that this rule is founded upon the premise that the court

possessing the property acquires jurisdiction to entertain all controversies involving the

property. Id. Yet, the question of mandamus and the availability of an adequate legal

remedy in lieu of mandamus was not at issue in Vallone, a case on which Warren relies to

support his contention. Moreover, authority has recognized not only that property may be

held in custodia legis by one court while ownership of that property is resolved by another

but also that the court lacking possession of the res has jurisdiction to continue as long as

it does not disturb the other’s possession of the res. Kull v. Brown, 165 S.W.2d 1011, 1014

(Tex. Civ. App.–Texarkana 1942, no writ). And, coincidentally, the latter rule seems to

                                              2
echo that described in In re State Bar and directing that, for purposes of mandamus, an

appeal is an adequate remedy so long as one court does not issue “an order that directly

interferes with another court’s jurisdiction.” In re State Bar, 113 S.W.3d at 734 (emphasis

added).

         Here, we are cited to no evidence of an order by which the 99th tried to obtain

possession of, otherwise exercise any control over, or in any way divest the 121st of the

monies held within its registry. Until such evidence arises and is brought to our attention,

we cannot but hold that appeal is an adequate remedy by which to review the order

denying Warren’s motion to abate. See e.g. Eikenburg v. Webb, 880 S.W.2d 781, 782

(Tex. App.–Houston [1st Dist.] 1993, orig. proceeding) (granting mandamus relief because

effort actually was made to remove the funds within the trial court’s registry). This seems

especially so when, as here, the suits pending in the 99th involve issues other than simply

ownership of the funds held by the 121st.1

         In closing, we recognize the increased expense inherent in trying similar issues

between similar or identical parties in different courts. Yet, the Supreme Court has

provided us with the controlling rules, and we must follow them. Accordingly, the petition

for writ of mandamus is denied.



         1
          The suits initiated in the 99th by How 1, Inc. encompass causes of action sounding in breached
contract and dam age s for sa me , specific performance, breached fiduciary duty and damages for same,
conversion of a partnersh ip intere st and da ma ges for sam e, and injun ction. Thus, much m ore is involve d in
the suits than simply who owns the money that Warren deposited with the 121 st. And, this circumstance also
distinguishes our case from that before the court in Harris v. M oore, 740 S.W.2d 14 (Tex. App.–El Paso 1987,
orig. proceeding), another case upon which W arren relies. In Ha rris, the sole issu e in th e se cond suit
apparently involved an attorney’s attem pt to sec ure a po rtion of the funds he ld by ano ther cou rt. Moreov er,
nowh ere did the court in Ha rris mention Abor or have the be nefit of In re State Bar, both of wh ich he ld that,
when considering whether to issue a writ of mandam us, an appeal constituted an adequate remedy as long
as one court did no t interfere with or issue an orde r interfering with the jurisdiction of the other. So, Ha rris is
not persu asive .

                                                          3
    Brian Quinn
      Justice




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