                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00368-CV


IN RE MATTHEW                                                      RELATOR
JAMES LEACHMAN




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                          ORIGINAL PROCEEDING

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                      MEMORANDUM OPINION1
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                                  I. Introduction

      Pro se Relator Matthew James Leachman, an inmate, complains that

Respondent, the Honorable W. Bernard Fudge, abused his discretion by granting

Real Parties in Interest Kerri Hansford and Rick Thaler’s motion for partial

dismissal and motion to strike. We conditionally grant Leachman’s petition for



      1
      See Tex. R. App. P. 47.4.

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writ of mandamus and direct Respondent to vacate his order granting Hansford

and Thaler’s motion; the writ will issue only if Respondent fails to do so.

                     II. Factual and Procedural Background

      Hansford and Thaler filed the motion at issue here after this court affirmed

the dismissal of all but Doug Dretke from Leachman’s pro se civil suit. See

Leachman v. Dretke, 261 S.W.3d 297, 316 (Tex. App.—Fort Worth 2008, no pet.)

(op. on reh’g). We reversed and remanded the dismissal with prejudice of Dretke

to the trial court to allow Leachman a reasonable opportunity to amend his

pleadings. See id. at 303, 305–06. In our analysis of his claim against Dretke,

we stated:

             Leachman did not clearly demarcate his claim for injunctive
      relief against Dretke as separate and apart from his claim for actual
      damages, although he did make such a distinction with regard to his
      request for exemplary damages against Adams, Boyle, Johnson,
      and Oncken. Therefore, from his amended petition, the trial court
      could have reasonably concluded that Leachman had failed to state
      a claim with an arguable basis in law because it appeared that he
      was seeking damages against someone who, in his official capacity,
      could not be held liable under [42 U.S.C.A] § 1983 [(West 2010)].

            Furthermore, Leachman clearly alleged that Milbern’s act of
      seizing his property was a due process violation, but it is unclear
      from his amended petition which constitutional rights he alleges that
      the DRC and Dretke violated, and whether he is attacking the initial
      deprivation, the policy behind the deprivation, the DRC’s review
      procedure, or the DRC’s decision to uphold the deprivation. He
      merely states that, by ―allowing‖ and ―upholding‖ Milbern’s seizure,
      Dretke, through the DRC, violated Leachman’s ―rights under the U.S.
      Constitution and the Constitution of Texas.‖

            Based on the ambiguities presented by Leachman in his claim
      against Dretke, we cannot say that the trial court abused its
      discretion by dismissing his claim for having no arguable basis in

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      law.[] Whether the trial court abused its discretion by dismissing
      Leachman’s claims with prejudice depends on whether Leachman’s
      errors could be remedied. Because Leachman could have amended
      his pleadings to clarify the ambiguities in his claim against Dretke,
      dismissal with prejudice was an abuse of discretion. Therefore, we
      overrule Leachman’s third issue, but we sustain the portion of
      Leachman’s first issue regarding the dismissal with prejudice of his
      claim against Dretke.

Id. at 305–06 (citations omitted). In the conclusion of our opinion, we stated,

      We reverse the trial court’s dismissal with prejudice as to
      Leachman’s claim against Dretke and remand the case to afford
      Leachman a reasonable opportunity to amend his pleadings as to
      that claim only. Having overruled the remainder of Leachman’s four
      points, we affirm the rest of the trial court’s judgment.

Id. at 316.

      This court’s mandate issued on September 18, 2008. In our mandate, we

stated, in pertinent part,

      This court has again considered the record on appeal in this case
      and holds that there was error in part of the trial court’s judgment. It
      is ordered that the judgment of the trial court is affirmed in part and
      reversed and remanded in part. We affirm that portion of the trial
      court’s judgment as to Leachman’s claims against Glenda J. Adams,
      Joseph C. Boyle, Deborah A. Johnson, and Denise Oncken. We
      reverse that portion of the trial court’s judgment with regard to the
      dismissal with prejudice of Leachman’s claims against Doug Dretke
      and remand the case to provide Leachman with a reasonable
      opportunity to amend his pleadings as to that claim only.

      Upon remand, Thaler and Hansford filed their motion, arguing that

Leachman had filed amended pleadings substituting Thaler in his official capacity

as the new Director of the Texas Department of Criminal Justice, Correctional

Institutions Division (TDCJ-CID) for Dretke, the old director, and adding Hansford

in her individual and official capacities, as TDCJ-CID’s Allred Unit’s mail room

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supervisor. They moved to dismiss all of the claims against Hansford, arguing

that Relator was trying to expand his suit beyond our mandate by adding

Hansford as a new party and also by adding new claims.                They asked

Respondent to dismiss Hansford and to strike Leachman’s new claim alleging the

unconstitutionality of the TDCJ policy BP-0.391, which prevents Leachman from

contacting his victims.

      In his response to the motion, Leachman argued that there was ―absolutely

no basis under Texas law for partial dismissal or for striking,‖ strenuously

disagreeing with Hansford and Thaler’s characterization of our mandate and

pointing out that it should be read within the context of the entire opinion.

Leachman stated,

             The Court of Appeals was emphasizing that all other
      defendants and claims were dismissed; it was not saying the case
      was forever limited to claims against the Director . . . by recognizing
      the validity of the claim, holding that its dismissal was improper, and
      remanding it to this Court, the Court of Appeals simply returned the
      claim to its prior status and allowed Plaintiff to proceed with it.

      Respondent issued a letter in which he concluded that our mandate was

clear and unambiguous and that Leachman violated our mandate by filing an

amendment naming Hansford as a new party and by adding a new claim.

Respondent issued an order incorporating this information on the same day,

stating, in pertinent part:

      It is hereby ORDERED, ADJUDGED and DECREED that said
      Motions be, and they are hereby GRANTED, and Plaintiff’s cause of
      action against Defendant, Kerri L. Hansford, is DISMISSED, and the
      Court further ORDERS that all claims by Plaintiff alleging the

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      unconstitutionality of [BP-0.391] and Section 38.111 of the TEXAS
      PENAL CODE are DISMISSED, all costs of court are assessed
      against Plaintiff.
                                  III. Discussion

      Leachman argues in his petition for writ of mandamus that Respondent

read our mandate too narrowly and complains that ―it was plainly inappropriate to

dismiss claims against Hansford[] or strike claims against Thaler, based on the

mandate, and mandamus is the proper remedy when the trial court ignores the

mandate.‖   The Attorney General’s office responded on behalf of Thaler and

Hansford and contends that Respondent did not err in his interpretation of our

mandate.

      Generally, mandamus relief is appropriate only when there has been a

clear abuse of discretion by the trial court and there is no adequate remedy on

appeal. In re State, No. 10-0235, 2011 WL 3796616, at *2 (Tex. Aug. 26, 2011)

(orig. proceeding).    However, a writ of mandamus ―will issue to compel

compliance with the mandate of the Court of Appeals.‖ Schliemann v. Garcia,

685 S.W.2d 690, 692 (Tex. App.—San Antonio 1984, orig. proceeding).

      We have previously stated that when an appellate court remands a case

with specific instructions, the trial court is limited to complying with the

instructions and cannot relitigate issues controverted at the former trial and that

its authority is limited to only those issues specified in the mandate. Denton

Cnty. v. Tarrant Cnty., 139 S.W.3d 22, 23 (Tex. App.—Fort Worth 2004, pet.

denied). However, ―[i]n interpreting the mandate of an appellate court, the trial


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court looks not only to the mandate itself but also to the appellate court’s

opinion,‖ and the trial court is given a reasonable amount of discretion in

complying with the mandate. Id. (emphasis added). A trial court’s failure to

comply with a court of appeals mandate is an abuse of discretion, and

mandamus will issue to ensure compliance with the court’s judgment. See Lee v.

Downey, 842 S.W.2d 646, 648 (Tex. 1992) (orig. proceeding).

       Here, in our opinion in Leachman, we stated that we sustained the portion

of Leachman’s first issue regarding the dismissal with prejudice of his claim

against Dretke and in the conclusion of the opinion, we stated that we reversed

the dismissal with prejudice ―as to that claim only‖; however, the opinion provided

the context of the parties sued by Leachman and the claims that Leachman had

brought. See Leachman, 261 S.W.3d at 306, 316; cf. Madeksho v. Abraham,

Watkins, Nichols, & Friend, 112 S.W.3d 679, 690–91 (Tex. App.—Houston [14th

Dist.] 2003, pet. denied) (op. on reh’g) (stating that while in a perfect world

appellate mandates would settle all questions and end all disputes, when they do

not, trial judges must do the best they can to interpret the mandate and to follow

it).

       Leachman’s suit is a civil suit. Under rule of civil procedure 63, parties

may amend their pleadings ―as they may desire by filing such pleas with the clerk

at such time as not to operate as a surprise to the opposite party,‖ as long as the




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amendments occur prior to seven days before the date of trial.2 Tex. R. Civ. P.

63; see City of Dallas v. Turley, 316 S.W.3d 762, 771 n.6 (Tex. App.—Dallas

2010, pet. denied) (stating that because the appellate court was remanding the

cause to the trial court to reconsider claims not addressed in the plea to the

jurisdiction, the landowners would have the opportunity to seek to join additional

parties or amend their pleadings as the rules may allow, citing rules of civil

procedure 39–41, 63). And under rule of civil procedure 37, additional parties

may be brought as long as it does not unreasonably delay the trial of the case.

See Tex. R. Civ. P. 37; see also Tex. R. Civ. P. 39–40. Misjoinder of parties is

not a ground for dismissal of an action. See Tex. R. Civ. P. 41.

      Because, within the context of the opinion, this court’s mandate did not

expressly preclude Leachman from including additional claims or parties in the

suit under the rules of civil procedure, we conclude that Respondent abused his

discretion by granting Hansford and Thaler’s motion. See Reynolds v. Murphy,

266 S.W.3d 141, 143 (Tex. App.—Fort Worth 2008, pet. denied) (stating that this

court’s opinion and mandate in the prior appeal did not preclude appellant from

freely amending his pleadings under rule of civil procedure 63); see also Simulis,

L.L.C. v. Gen. Elec. Capital Corp., No. 14-09-01055-CV, 2011 WL 505334, at *3–

4 (Tex. App.—Houston [14th Dist.] Feb. 15, 2011, pet. filed) (concluding that on

remand, Simulis was entitled to amend its pleadings to add new claims or parties


      2
       There is no indication that a trial date has been set in Leachman’s case.

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except as to the claim upon which summary judgment was rendered in General

Electric’s favor when the opinion and mandate made clear that more than one

claim was considered).

                                 IV. Conclusion

      Because we may issue mandamus to enforce compliance by the trial court

with our mandate, we conditionally grant Leachman’s petition for writ of

mandamus and direct Respondent to vacate his order granting Hansford and

Thaler’s motion; the writ will issue only if Respondent fails to do so. See Tex. R.

App. P. 51.1; Lee, 842 S.W.2d at 648; In re Castle Tex. Prod. Ltd. P’ship, 157

S.W.3d 524, 527 (Tex. App.—Tyler 2005, orig. proceeding); see also

Schliemann, 685 S.W.2d at 692.




                                                   BOB MCCOY
                                                   JUSTICE


PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: November 10, 2011




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