                                                                                              ACCEPTED
                                                                                          05-15-01462-CV
                              05-15-01462-cv                                   FIFTH COURT OF APPEALS
                                                                                          DALLAS, TEXAS
                                                                                     12/1/2015 3:20:15 PM
                                                                                               LISA MATZ
                                                                                                   CLERK
                        NO.                          __



                                                                      RECEIVED IN
                                                                 5th COURT OF APPEALS
                                                                     DALLAS, TEXAS
                                                                 12/1/2015 3:20:15 PM
                                                                       LISA MATZ
                                    IN THE                               Clerk

                        FIFTH COURT OF APPEALS

                              DALLAS, TEXAS
                                                                       FILED IN
                                                                 5th COURT OF APPEALS
                     COUNTY COURT AT LAW NO. 3                       DALLAS, TEXAS
                                                                 12/1/2015 3:20:15 PM
                                                                       LISA MATZ
                                                                         Clerk
                              In Re Daniel Pearson



Original Proceeding From the County Court at Law No. 3 of Dallas County, Texas



                  PETITION FOR WRIT OF INJUNCTION




                                                     Kathy Roux
                                                     Law Office of Kathy Roux
                                                     P. O. Box 1701
                                                     Grapevine, TX 76099
                                                     Tel.: (817) 874-8877
                                                     Fax: (877) 878-5884
                                                     Email: kathy@kathyrouxlaw.com
                                                     Texas State Bar Number 24054141
                                                     ATTORNEY FOR RELATOR




                     ORAL ARGUMENT REQUESTED
                        NO.                          __




                                    IN THE

                       FIFTH COURT OF APPEALS

                              DALLAS, TEXAS

                     COUNTY COURT AT LAW NO.3



                              In Re Daniel Pearson



Original Proceeding From the County Court at Law No.3 of Dallas County, Texas



                  PETITION FOR WRIT OF INJUNCTION




                                                     Kathy Roux
                                                     Law Office of Kathy Roux
                                                     P. O. Box 1701
                                                     Grapevine, TX 76099
                                                     Tel.: (817) 874-8877
                                                     Fax: (877) 878-5884
                                                     Email: kathy@kathyrouxlaw.com
                                                     Texas State Bar Number 24054141
                                                     ATTORNEY FOR RELATOR




                     ORAL ARGUMENT REQUESTED
                          IDENTITY OF PARTIES AND COUNSEL

        The following is a complete list of all parties, as well as the names and addresses of all
counsel.

PARTIES                                              COUNSEL

Relator:

Daniel Pearson                                       Kathy Roux
                                                     P. O. Box 1701
                                                     Grapevine, TX 76099


Respondent:

Joseph Kemp, As Administrator of the Estate          Zachary Johnson
of Lou Bertha Brooks, Deceased                       500 N. Akard Street, Suite 2150
                                                     Dallas, Texas 75201-3302


Real Party in Interest:

Sharunda King                                        Pro Se

Jastasia King                                        Pro Se

Occupants                                            Pro Se




                                                II
                                 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                                  ii

INDEX OF AUTHORITIES                                                             iv

STATEMENT OF THE CASE                                                            v

STATEMENT OF JURISDICTION                                                        vi

ISSUES PRESENTED                                                                 vi

STATEMENT OF FACTS                                                                1

ARGUMENT AND AUTHORITIES                                                          1

PRAYER                                                                           3

CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.30)                             .4

CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i)                             .4

CERTIFICATE OF SERVICE                                                           4

APPENDIX                                                                         5

     A - Trial court's fmaljudgment   signed November 20, 2015                   5

     B - Daniel Pearson's Notice of Appeal.                                      9

     C - Joseph Kemp's Request for Writ of Possession filed November 30, 2015   .12

     D -Pace v. McEwen, 604 S.W.2d 231 (Tex.Civ.App.-San Antonio 1980)          14




                                              iii
                                INDEX OF AUTHORITIES



CASES                                                                             Page

Baptist Med Ctr. V Gonzalez, 33 S.W.3d 821, 822 (Tex.2000)                           3

Briones v. Brazos Bend VillaApts. , 438 S.W.3d 808,812-813
(Tex.App.-Houston [14th District] 2014, no pet.)                                   1, 2

EMW Mfg. Co. v. Lemons, 724 S.W.2d 425 (Tex.App.-Fort Worth 1987)                    3

In Re Gruebel, 153 S.W.3d 686 (Tex.App.-Tyler 2005)                                  3

Kemper v. Stonegate Manor Apartments Ltd, 29 S.W.3d 362,363
(Tex.App.-Beaumont 2000, pet. dism'd w.o.j.)                                         2

Madison v. Martinez, 42 S.W.2d 84,86 (Tex.Civ.App.-Dallas 1931, writ ref d)          .2

Marshall v. Housing Authority of City of San Antonio, 198 S.W.3d 782 (Tex.2006)      2

Pace v. McEwen, 604 S.W.2d 231 (Tex.Civ.App.-San Antonio 1980)                     2, 3

Wilhelm v. Fed Nat'/ Mortgage Ass'n., 349 S.W.3d 766, 768-769
(Tex.App.-Houston [14thDistrict] 2011, no pet.)                                      2




TEXAS CONSTITUTION, STATUTES, AND RULES

Texas Government Code §22.221                                                     vi, 3

Texas Rules of Appellate Procedure 9.4                                               4

Texas Rules of Appellate Procedure 52                                               vi

Texas Rules of Appellate Procedure 52.3                                              .4




                                             iv
                                 STATEMENT OF THE CASE

       On August 31, 2015, respondent Joseph Kemp, as Administrator of the Estate of Lou

Bertha Brooks, Deceased, filed a Sworn Complaint for Eviction against Relator Daniel Pearson,

naming him Daniel King, and Parties in Interest Sharunda King, Jastasia King and Occupants in

the Justice of the Peace Court, Precint 1, Place 1, Dallas, Dallas County, Texas to obtain

possession of the real property located at 1914 Argyle Avenue, Dallas, Dallas County, Texas.

       In response to said complaint, Relator Daniel Pearson filed Special Exceptions,

Objections and Answer. The parties in interest Sharunda King, Jastasia King and Occupants did

not appear nor file an answer.

       On September 11, 2015, at the hearing on this matter, a judgment was rendered against

relator Daniel Pearson and parties in interest Sharunda King, Jastasia King and Occupants

granting respondent Joseph Kemp the premises, rent owing in the sum of $.00, attorney fees in

the sum of $.00, interest on said judgment from this date at 5.00% per annum, and all costs of

court in the amount of$296.00.

       On September 14, 2015, relator Daniel Pearson filed a de novo appeal and deposited a

cash bond in the amount of $500.00 with the justice of the peace clerk. This matter was

docketed with the Dallas County Clerk, assigned to Dallas County Court at Law No.3, and set

for hearing on November 6, 2015. Counsel for relator and respondent agreed to a continuance

which was granted by the court, and this matter was reset for hearing on November 20,2015.

       At the hearing of this matter on November 20, 2015, judgment was rendered for Joseph

Kemp, granting him a writ of possession and costs of court. On November 27, 2015, relator filed

a Notice of Appeal. On November 30, 2015, respondent filed a request for a writ of possession.

On November 30, 2015, relator filed a Motion to Set Amount Required to Supersede Judgment,

which was rejected for deficiencies. On November 30, 2015, relator filed a file-stamped copy of

                                               v
the Notice of Appeal with the clerk of court for the Fifth Court of Appeal, Dallas, Texas. On

December 1, 2015, relator filed this Writ of Injunction and Motionfor Emergency Relief



                               STATEMENT OF JURISDICTION

       This court has jurisdiction over this petition for writ of mandamus under Section

22.221(b) of the Texas Government Code and Texas Rules of Appellate Procedure 52.



                                     ISSUES PRESENTED

                                        Issue Number One

       May the Fifth Court of Appeal grant relator a writ of injunction in order to prevent the

execution of the judgment rendered by the Dallas County Court at Law No.3 that grants

respondent possession of the real property located at 1914 Argyle Avenue, Dallas, Dallas

County, Texas in order to preserve its jurisdiction over said real property, whether or not

supersedeas is available to the appellant?




                                               vi
                                    STATEMENT OF FACTS

       This case was docketed as a de novo appeal of a judgment of eviction rendered by the

Justice ofthe Peace Court, Precinct 1, Place 1, Dallas, Dallas County, Texas. On November 20,

2015, this matter was heard by the Dallas County Court at Law Number 3. The court rendered a

final judgment against relator granting respondent a writ of possession for the real property

located at 1914 Argyle Avenue, Dallas, Dallas County, Texas, and for costs of court.

       On November 27,2015, relator filed a Notice of Appeal with the Dallas County Clerk to

appeal the final judgment rendered on November 20,2015. On November 30, 2015, respondent

filed a Writ of Possession with the Dallas County Clerk. On November 30, 2015, relator filed a

Motion to Set Amount Required to Supersede Judgment which was rejected for deficiencies. On

November 30, 2015, relator filed a file-stamped copy of the Notice of Appeal with the clerk of

court for the Fifth Court of Appeal, Dallas, Texas. On December 1,2015, relator filed this Writ

of Injunction and Motionfor Emergency Relief



                               ARGUMENT AND AUTHOIDTffiS

       Relator's application for injunctive relief in this Court concerns the jurisdiction of this

court being threatened by respondent's enforcement of the judgment rendered on November 20,

2015 by filing a request for a writ of possession. Should respondent obtain a writ of possession,

and it is highly likely that he will, then such writ will remain enforceable during relator's appeal.

It is also highly likely that respondent will pursue a writ of execution to have relator removed

from the premises. Because respondent is proceeding to enforce the judgment, relator is at risk

of losing possession by enforcement of the writ of possession. If relator loses any right to

possession of the premises, his appeal becomes moot as to that issue. Briones v. Brazos Bend
Villa Apts., 438 S.W.3d 808, 812-813 (Tex.App.-Houston         [14thDistrict] 2014, no pet.) (when

supersedeas bond not posted and writ of possession is executed in favor of landlord, action is

moot as to issue of possession because tenant no longer has claim to possession of property). See

also Wilhelm v. Fed. Nat'l Mortgage Ass'n., 349 S.W.3d 766, 768-769 (Tex.App.-Houston

[14thDistrict] 2011, no pet.); Kemper v. Stonegate Manor Apartments Ltd., 29 S.W.3d 362, 363

(Tex.App.-Beaumont      2000, pet. dism'd w.o.j.), overruled on other grounds; Marshall v.

Housing Authority of City of San Antonio, 198 S.W.3d 782 (Tex.2006).

       "This court's power to grant temporary injunctions flows from the provisions of Article

1823, and the power granted by that statute is limited to the purpose of protecting our

jurisdiction." Pace v. McEwen, 604 S.W.2d at 233 citing Madison v. Martinez, 42 S.W.2d 84,86

(Tex.Civ.App.-Dallas 1931, writ ref'd).

       Relying on Texas Government Code § 22.221 and prior jurisprudence, the court in Pace

clearly determined that a reviewing court may grant an injunction preventing the disposition of

property in order to preserve its jurisdiction over the property, and that the reviewing court has

this power whether or not supersedeas is available to the respondent. The Pace court further

reasoned that

       [s]ince we issue injunctions only for that limited purpose and not for the purpose
       of protecting a litigant, our exercise of that power in no degree depends upon the
       rights of a litigant or the remedies available to him. Once our jurisdiction is
       threatened, our right to preserve and protect it cannot depend on the adequacy of
       legal remedies which would be available to the litigant but which are not available
       to us. Whether our jurisdiction will be preserved or destroyed cannot be left to
       the whim of a litigant this Court cannot file a supersedeas bond to prevent the
       destruction of our jurisdiction, nor can this Court order an unwilling litigant to file
       such a bond.

Pace at 233.




                                                 2
       In so reasoning, the Pace court granted relator's application for injunction, pending

disposition of the appeal from the lower court's order.

       "It is well settled that an appellate court is authorized to protect is jurisdiction by

preserving the subject matter of the appeal in order to make its decrees effective." EMW MIg.

Co. v. Lemons, 724 S.W.2d 425,426 (Tex.App.-Fort Worth 1987).

       The court in In re Gruebel reasoned that "[a] court of appeals is authorized to issue all

writs necessary to enforce its jurisdiction. Tex. Gov't Code Ann. §22.221(a) (Vernon 2004). If

an appeal pending before this Court becomes moot, we lose jurisdiction over it.      See Valley

Baptist Med. Ctr. V Gonzalez, 33 S.W.3d 821, 822 (Tex.2000). Consequently, we may issue a

writ of injunction to preserve the subject matter of a case pending appeal and to prevent the

appeal from becoming moot. EMW Mfg. Co. v. Lemons, 724 S.W.2d 425, 426 (Tex.App.-Fort

Worth 1987)." In re Gruebel, 153 S.W.3d 686 (Tex.App.-Tyler 2005).



                                            PRAYER

       For these reasons, Daniel Pearson, Relator, requests that this Court grant relator's

application for injunction pending disposition of the appeal from the lower court's order of

November 20,2015.

Date: December 1, 2015
                                                     KathyRoux
                                                     Attorney for Relator Daniel Pearson




                                                3
            CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.3G)

        This certifies that the undersigned has reviewed this Petition and concluded that every
factual statement in it is supported by competent evidence included in the appendix or record, as
required by Appellate Rule 52.3G).

Date: December 1, 2015
                                                    Kathy Roux
                                                    Attorney for Relator Daniel Pearson




            CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i)

        I certify that this document contains less than 15,000 words, as indicated by the word-
count function of the computer program used to prepare it, and excluding the caption, identity of
parties and counsel, statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of compliance, and
appendix, as provided by Appellate Rule 9.4(i).

Date: December 1,2015
                                                    KathyRoux
                                                    Attorney for Relator Daniel Pearson




                                 CERTIFICATE OF SERVICE

       This certifies that the undersigned served this Petition for Writ of Injunction on Joseph
Kemp, Respondent, by sending it to lead counsel for Respondent, Zachary Johnson, at 500 N.
Akard Street, Suite 2150, Dallas, Texas 75201-3302, and served it on Sharunda King and
Jastasia King and Occupants, Real Parties in Interest, by sending it by U.S. First Class Mail,
postage prepaid on December 1, 2015.


                                                    Kathy Roux
                                                    Attorney for Relator Daniel Pearson




                                                4
APPENDIX A




    5
                              JOHN F. WARREN
                              Dallas County Clerk
                              George Allen Sr. Court Bldg.
                              600 Commerce St, Ste 101
                              Dallas, Texas 75202-3551




STATE OF TEXAS

COUNTY OF DALLAS



       I, John F. Warren, Clerk of the County Court of Dallas County Court at Law No.3,
Dallas County, Texas do hereby certify that the foregoing is a true and correct copy of
document in Cause No. CC-15-05015-C.


  JOSEPH KEMP AS ADMINISTRATOR 0 ESTATE OF LOU BERTHA BROOKS,
                              DECEASED, PLAINTIFF       (S)
                                           VS
   SHARUNDA KING; JASTASIA KING; DANIEL PEARSON, DEFENDANT                       (S)


JUDGMENT,       filed on 20th day of November, 2015 in the Dallas County Court at Law
No.3, Dallas County, Texas.


WITNESS MY HAND AND SEAL of said Court this 20th day of November, 2015.


John F. Warren, County Clerk


BY:~
       Gwendolyn Thomas, Deputy




                                                                                       ------~
"         ,                                                                                                                       )   <L._

                                                                                                                          ~-,--              .      -   ;~

                                                                                                                                                    {;.
                                                                                                                                                        r
                                                                                                                                                        1
                                                          CAUSE    No. CC-lS-0S0lS-C

              JOSEPH KEMP, AS ADMINISTRATOR                             §            IN THE COUNTY           COURT AT LAW
              OF THE ESTATE OF LOU BERTHA                               §
              BROOKS, DECEASED                                          §
                          Plaintiff                                     §
                                                                        §                          NO. THREE OF
              v.                                                        §
                                                                        §
              DANIEL PEARSON, SHARUNDA KING,                            §
              JASTASIA KING AND ALL OTHER                               §
              OCCUPANTS                                                 §
                          Defendants                                    §                     DALLAS COUNTY, TEXAS

                                                                JUDGMENT
    -.~
I




              ~f·  •   '.
                          icc1Jfailed to appear, Defendant
                                                     ._
                                                             Jastasia
                                                           ---    -.
                                                                      King..:>personally
                                                                                  "'-
                                                                                           a"~..
                                                                                              8feEYfailedto
                                                                                                       ,    •
                                                                                                              appear and the
                                                                                                                    .._
                                                                                                                      -     ----:"-T'"
                                                                                                                                                 ;11.




              C<>urt proceeded to hear the case and enter Judgment in favor of the Plaintiff as set forth below.                  . '; :~,,+




                                                                                               CC- 16 - 06016 - C
                                                                                               COJ
                                                                                               ORDER - JUDGMENT
                                                                                               963976



                                                                                              '11~~ml'mmmlmllllllll
                                                                           \   1"




....          ITlSTREREFt1KI._.~~~~mthatPlajntitfJ0Sep~                                                            " .,~,

       Kemp, as Administrator of the Estate of Lou Bertha Brooks, Deceased, have judgment against

       Defendants Daniel Pearson, Sharunda King, Jastasia King and all occupants for:

               1.     A writ of possession granting' Plaintiff possession of the premises
                      located at 1914 Argyle Avenue, Dallas, Texas 75203; and

              4.      All costs of court.
                                                                                                                               .
                                                                                                                               ; ,
                                                                                                                                   ~
       for which execution shall issue.

       This Judgment is [mal and disposes of all claims and parties.

              SIGNED AND ORDERED this           -it;   day of A!~2015.



                                                            ao~~
                                                            of the County Court at Law, No. Thee
                                                            of Dallas County, Texas
       JUDGMENT- S8'18 P~e
                                                                                            .....   -e-   -   _-



                                                                                                                      -   _'
APPENDIX B




    9
                                                                                                           FILED
                                                                                           11/27/20153:36:21   PM
                                                                                                 JOHN F. WARREN
                                                                                                   COUNTY CLERK
                                                                                                  DALLAS COUNTY




                                CAUSE NO. CC-1 5-0501 5-C

JOSEPH KEMP, AS ADMINISTRATOR                 §          IN THE COUNTY COURT AT LAW
OF THE ESTATE OF LOU BERTHA                   §
BROOKS, DECEASED,                             §
           Plaintiff                          §
                                              §
v.                                            §          NUMBER 3 FOR
                                              §
DANIEL PEARSON, SHARUNDA KING,                §
JASTASIA KING AND ALL OTHER                   §
OCCUPANTS                                     §
            Defendants                        §          DALLAS COUNTY, TEXAS

                                    NOTICE OF APPEAL

TO THE HONORABLE JUDGE OF THIS COURT:
       Pursuant to Rule 25.1 of the Texas Rules of Appellate Procedure, DANIEL PEARSON,
who is a defendant to JOSEPH KEMP's Sworn Complaint for Eviction, filed on August 31,2015,
gives notice of his appeal to the Fifth Court of Appeals for the Dallas County Court at Law
Number 3, sitting at Dallas, Dallas County, Texas, from the Judgment rendered by said Court in
the above-entitled and numbered cause on November 20, 2015, granting a writ of possession of
the premises located at 1914 Argyle Avenue, Dallas, Texas     75203 and all costs of court to
plaintiff JOSEPH KEMP, as Administrator of the Estate of Lou Bertha Brooks, Deceased.


Dated: November 27,2015                           Respectfully submitted,




                                                  Kathy E. Roux, TBN 24054141
                                                  P. O. Box 1701
                                                  Grapevine, TX 76099
                                                  Tel.: (817) 874-8877
                                                  Fax: (817) 878-5884
                                                  Email: kathy@kathyrouxlaw.com
                                                  Attorney for Daniel Pearson
                                   CERTIFICATE OF SERVICE

        I hereby certify that on this the 27th day of November, 2015, a true and correct copy of
the foregoing instrument titled Notice of Appeal was served in accordance with the Texas Rules
of Civil Procedure to the following:


Zachary E. Johnson                                 Sharunda King
500 N. Akard Street, Suite 2150                    1914 Argyle Avenue
Dallas, Texas 75201-3302                           Dallas, TX 75203
Email: zach@spencerlawpc.com
Tel.: (214) 965-9999
Fax: (214) 965-9500

Jastasia King                                      Occupants
1914 Argyle Avenue                                 1914 Argyle Avenue
Dallas, TX 75203                                   Dallas, TX 75203




                                         Kathy E. Roux




                                              II
APPENDIX C




    12
                                                     JOHN F WARREN
                                                     DALLAS COUNTY CLERK
                                                     GEORGE ALLEN SR COURTS BLDG
                                                     600 COMMERCE ST, STE 101
                                                     DALLAS, TEXAS 75202

                               REQUEST FOR: WRIT OF EXECUTIONS I ABSTRACTS OF JUDGMENTS
                                  ORDER OF SALE AND WRITS OF POSSESSION
                                                          *CERTIFIED COPIES - ON OPEN CASE ONLY

    Date:                                  \ \-        13··lS
    Case Number:
                     )ose~n
                                           Cc· as\5"A·~minl~·->=m'
                                         ~mpJ
                                                        050;"~'\::;'S-           t
                                                                    fi)=-:("""():?f""".t"""t'I-e""8'7"Stt'l""""""le:::-=ot:""".·-rc-:-:-.o~~
                                                                                                                                         8er-t-v>u\"   BrOD~~ OeUfAS'ftL,Pl4innff
    Style:        V. !')Cinit\ eeA(1),?-O! f,barundll, (?JO"i1:tfSttAf,lo..l?'''j                                                       ~Yldall         o+nuIOU4pantr; IJdendonfs
!
    Party to be served:                I        Da.n et pea-rso n                                                                                                      1

    Address to be served:                   \~      14           A-Y]~f. A- \Ien U,f.,
                                             Dot (laS re~Cls. ,SL03  I




Please issue:
Writ of Execution                          Serve by:      Constable or                          Sheriff                   Mail Back:
                                               ($5 Plus $150)                                                            ($5 for issuance)

Writ of Possession                        Serve by: VConstable or _                            Sheriff                  Mail Back:
                                              ($5 Plus $170)                                                            ($5 for issuance)
Order of Sale                             Serve by: _ Constable or _                           Sheriff                  Mail Back: __
                                             ($5 Plus $150)                                                             ($5 for issuance)
Abstract of Judgment                      Forward to Recording: __                                                        Mail Back:
                                             ** ($5 Plus $26 Recording Fee)                                              ($5 for issuance)
Additional information
    Recording the Abstract Submit a Separate check for the amount of ($26.00) make payable to:
                             John Warren County Clerk
    Mailed to:      John Warren, County Clerk
                     Dallas County Recording Division
                    509 Main 2nd Floor Records Building
                     Dallas, Texas 75202
    Certified Copies - Pending cases are $5.00 for the first page, then $1.00 per page every page after and pay for
    it through e-filing.
    If it is a Closed Case,please make a check made payable to: John Warren County Clerk.
    Mailed to:           Dallas County Central Records
                          George Allen Senior Courts Building
                          600 Commerce St. Floor 81
                          Dallas, Texas 75202
    Requested by:   1lALhayo                       f· 00 nnbOOPhone                      numbertl~               ~     qqqq
                                                                                                                     ~S··
                    Attorney,             laintiff or Defendan~
    Attorney Address:                                   •                (j   S , ft· 2tSD
    Attorney City        _..D<....:C1:...:...:_Il:...:.a"'-"S~                   _
    State and Zip Code     re '/..aS ISW ,
APPENDIX D




    14
11/30/2015                                             Search Results: (604 s.w.2d 231) (13 found)

                    PACE v. MCEWEN, 604 S.W.2d 231 (Tex.Civ.App.-San Antonio 1980)
                                                         604 S.W.2d 231
                     Joe Dudley PACE, Movant, v. John J. McEWEN, Jr., Respondent.
                                                             No. 16573.
                                 Court of Civil Appeals of Texas, San Antonio.
                                                         June 20, 1980.

     Richard G. Strong, Casseb, Leon, Rodgers, Strong & Pearl,
   San Antonio, Jeffrey A. Davis, Reynolds, Allen & Cook,
   Houston, for movant.
     Pat Maloney, Jack Pasqual, George LeGrand, San Antonio, for
   respondent.
   Page 232
                                                       OPINION
       CADENA, Chief Justice.
     Relator, Joe Dudley Pace, has filed this original application
   for injunction to stay the enforcement of an order entered by a
   Bexar County district court on June 9, 1980, pending
   disposition of relator's appeal from such order.
     In 1977 respondent, John J. McEwen, Jr., obtained a money
   judgment against relator which has not been satisfied.
   Respondent, after the 1977 judgment had become final, filed, in
   that same case, a "Motion in the Nature of a Bill of Discovery
   and Motion for Declaratory Relief." In this proceeding
   respondent sought judgment allowing respondent to execute upon
   real estate located in Harris County, legal title to which is
   in relator, in satisfaction of the 1977 judgment; and a
   declaration that equitable title to such land lies in the
   estate of respondent's testatrix. The motion also contained a
   prayer for general relief.
     The June 9, 1980, judgment, from which relator has perfected
   his appeal, declares that the Harris County land is not the
   homestead of relator and not exempt from forced sale or
   execution. The judgment orders relator to turn over such
   property to the Sheriff of Harris County and orders that
   sheriff to sell the property to the highest bidder according to
   the laws and procedures provided for executions. Finally, the
   judgment decrees that relator shall turn over said land to the
   sheriff not later than 12:00 o'clock noon on June 19, 1980, and
   that should relator fail to do so, the court "shall enforce
   this order by proceedings for contempt or otherwise in case of
   refusal or disobedience, all as provided by
   Tex.Rev.Civ.Stat.Ann. art. 3827 (a)(3827a)."
     Relator's application for injunctive relief in this Court
   concerns only that portion of the June 9, 1980, judgment which
   orders him to turn the property over to the Sheriff of Harris
   County no later than noon, June 19, 1980.
     Whether the judgment entered below is one which the trial
   court had authority to enter under the statute referred to in
   the judgment is a question which is not now before us, nor are

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                                                             1"
11/30/2015                                             Search Results: (604 s.w.2d 231) (13 found)
  we at this time called on to determine whether the relief
  sought by respondent's motion "in the nature of a bill of
  discovery" is available under that statute or under other rules
  relating to discovery.
    Article 1823, Tex.Rev.Civ.Stat.Ann. (Vernon 1964), gives
  this Court the power to issue such writs as may be required to
  protect and preserve its jurisdiction. We agree with relator
  that unless injunctive relief is now granted, he will be forced
  to comply with that portion of the judgment requiring him to
  turn his property over to the sheriff for sale at execution,
  and any opinion we might subsequently render as to the validity
  of that portion of the judgment would be meaningless.
    Respondent urges that under Rule 364, Tex.R.Civ.P. (1977),
  relator had the right to prevent any portion of the judgment
  below by filing a supersedeas bond. We are in agreement with
  this statement, but we do not agree that this Court is deprived
  of the power to issue the relief sought by relator because Rule
  364 affords relator an adequate remedy at law.
     In Burch v. Johnson, 445 S.W.2d 631, 632 (Tex.Civ.App.-El
   Paso 1969, no writ), the Court, in a per curiam opinion, said:
      Both injunction and prohibition do not lie where
      there is an adequate remedy through the ordinary
      channels of procedure. It is clear that Rule 364
           affords the relator the right to suspend the
      judgment against it by giving the supersedeas bond
             thus staying (enforcement of the judgment) .
      Having a complete provisional remedy at law, the
      relators are not entitled to the relief sought.
  A similar holding was made in Dallas Bank & Trust Co. v.
  Thompson, 78 S.W.2d 740 (Tex.Civ.App.-Dallas 1935, no writ) .
     In Landrum v. Centennial Rural High School Dist., 146 S.W.2d 799
    (Tex.Civ.App.-Austin 1940, writ dism'd judgmt. cor.), the
   Court pointed out that a party wishing to prevent enforcement
   of a judgment from which he has perfected an appeal had two
   remedies available: "First, to obtain pending
   Page 233
   the appeal a temporary injunction..      Art. 1823, R.S. 1925.
   Second, appellants could have superseded the judgment of the
   trial court ....   " 146 S.W.2d at 801.
    The rule which respondent seeks to apply has undoubted
  application in cases where the purpose of the injunction is to
  protect the rights of a litigant. This court has no power to
  grant a temporary injunction to prevent damage to an appellant.
  That power is vested exclusively in trial courts. Our power to
  issue injunctions flows from the provisions of Article 1823,
  and the power granted by that statute is limited to the purpose
  of protecting our jurisdiction. See Madison v. Martinez, 42 S.W.2d 84,
  86 (Tex.Civ.App.-Dallas 1931, writ ref'd). Since we
  issue injunctions only for that limited purpose and not for the
  purpose of protecting a litigant, our exercise of that power in
  no degree depends upon the rights of a litigant or the remedies
  available to him. Once our jurisdiction is threatened, our
  right to preserve and protect it cannot depend on the adequacy
  of legal remedies which would be available to the litigant but
  which are not available to us. Whether our jurisdiction will
  be preserved or destroyed cannot be left to the whim of a
  litigant this Court cannot file a supersedeas bond to prevent
  the destruction of our jurisdiction, nor can this Court order
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  an unwilling litigant to file such a bond. To hold that the
  availability of supersedeas to a litigant in any way affects
  the power granted to this Court to protect its jurisdiction is
  to ignore the reason for the grant of power and the purpose to
  be served by its exercise.
       We decline to follow Burch and Dallas Bank & Trust Co.
     Relator's application for injunction, pending disposition of
   the appeal from the order of June 9, 1980, is granted.
      MURRAY, Justice, dissenting.
    I dissent. The record in this case shows that the relator
  has made no attempt to suspend any portion of the judgment
  below by the execution of a supersedeas bond. Tex.R.Civ.P. 364
  has application to judgment such as the one under consideration
  here. In this case I would follow the reasoning in Burch v.
  Johnson, 445 S.W.2d 631 (Tex.Civ.App.-El Paso 1969, no writ),
  and deny the injunction.




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