Opinion issued June 27, 2019




                                         In The

                                 Court of Appeals
                                        For The

                            First District of Texas
                              ————————————
                                 NO. 01-19-00324-CV
                              ———————————
    IN RE PRENTIS B. TOMLINSON, JR., TRUSTEE OF THE SLATTERY
                          TRUST, Relator



             Original Proceeding on Petition for Writ of Mandamus


                            MEMORANDUM OPINION
       Relator, Prentis B. Tomlinson, Jr., Trustee of the Slattery Trust, filed a petition

for writ of mandamus seeking to compel the respondent trial judge to vacate his

February 12 and 14, 2019 post-judgment turnover orders in the underlying

proceeding.1 With his petition, relator included a notice of related appeal stating that


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       The underlying case is John Khoury v. Prentis B. Tomlinson, Jr., Cause No. 2012-
       61491, pending in the 281st District Court of Harris County, Texas, the Honorable
       Christine Weems presiding.
he, in his individual capacity, had filed a related notice of appeal on March 14, 2019,

from the same trial court cause number 2012-61491, challenging the same two

turnover orders challenged in his petition, and that appeal was assigned to appellate

cause number 01-19-00183-CV. Relator’s petition contends, among other things,

that he has no adequate remedy by appeal because he, as trustee, is not a party to the

turnover proceeding where he, in his individual capacity, is the defendant and, thus,

he cannot appeal the turnover orders as trustee. In any event, relator claims that he

does not need to show lack of an adequate appellate remedy because the turnover

orders are void.

      Mandamus is an extraordinary remedy, available only when the relator can

show both that: (1) the trial court clearly abused its discretion or violated a duty

imposed by law; and (2) there is no adequate remedy by way of appeal. In re Ford

Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding); Walker v. Packer,

827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).

      This Court requested and received a response to the petition. Real party in

interest John Khoury contends that the petition should be denied because relator, in

his individual capacity, is currently exercising his appellate remedy by appealing the

same two February 12 and 14, 2019 turnover orders that he challenges in this

petition. This Court also requested and received a response from the real party in

interest to relator’s emergency motion to stay enforcement of the two post-judgment

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turnover orders. Relator also filed a reply in support of his petition and a supplement

to his emergency motion stating that Khoury has recently set a contempt motion, a

request for injunction, and a motion to consolidate for a June 21, 2019 hearing in the

trial court.

       A judgment creditor is entitled to assistance from a court of appropriate

jurisdiction to reach property to obtain satisfaction of a judgment and a turnover

order is one means of providing such assistance. TEX. CIV. PRAC. & REM. CODE

ANN. § 31.002(a), (b) (West 2008); see also In re Bradberry, No. 12-12-00162-CV,

2012 WL 3201928, at *1 (Tex. App.—Tyler Aug. 8, 2012, orig. proceeding) (mem.

op.). Generally, turnover orders are final, appealable orders and, thus, must be

attacked on direct appeal. See Burns v. Miller, Hiersche, Martens & Hayward, P.C.,

909 S.W.2d 505, 506 (Tex. 1995) (turnover order was final, appealable judgment);

see also In re Bradberry, No. 12-12-00162-CV, 2012 WL 3201928, at *1 (citing

Davis v. West, 317 S.W.3d 301, 309 (Tex. App.—Houston [1st Dist.] 2009, no pet.)).

       Relator has an adequate remedy by appeal for which he, in his individual

capacity, is currently exercising by appealing the same two February 12 and 14, 2019

turnover orders that he challenges, as trustee, in this petition. Thus, because that

appeal remains pending under 01-19-00183-CV, for which he has not shown is an

inadequate remedy for challenging the validity of those orders, relator is exercising

his adequate appellate remedy. See Walker, 827 S.W.2d at 839–40 (mandamus relief

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is not available when adequate appellate remedy exists); see also In re Bradberry,

No. 12-12-00162-CV, 2012 WL 3201928, at *2 (denying mandamus petition

because relator had not shown that appeal was inadequate remedy for challenging

turnover order).

      Accordingly, we deny the petition for writ of mandamus because relator, in

his individual capacity, is exercising his adequate appellate remedy. We dismiss all

pending motions as moot.

                                 PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Hightower.




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