                                     NO. 07-07-0245-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                            PANEL B

                                     JULY 9, 2008
                           ______________________________

                         IN RE R. WAYNE JOHNSON, RELATOR
                          _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                        ON PETITION FOR WRIT OF MANDAMUS


       Relator R. Wayne Johnson seeks a writ of mandamus directed at respondent,

Honorable Ruben Reyes, Judge of the 72nd District Court of Lubbock County. Relator’s

petition asks that we direct Judge Reyes to set aside an order entered in Cause No. 2007-

538,138, dismissing relator’s suit because he failed to obtain permission of the local

administrative judge before filing suit.1


       A writ of mandamus is a judicial writ directed at an individual, official, or board, to

whom it is addressed, to perform some specific legal duty to which the relator is entitled

under legal right to have performed. Crowley v. Carter, 192 S.W.2d 787, 790



       1
         As a result of prior litigation, the 156th District Court in Bee County found relator to
be a “vexatious litigant” under Chapter 11 of the Texas Civil Practice and Remedies Code
(Vernon 2002). In 2001, that court rendered an order pursuant to § 11.101 of that chapter
prohibiting relator from initiating litigation in Texas courts without obtaining permission of
“a local administrative judge.”
(Tex.Civ.App.–Fort Worth 1946, no writ). To be entitled to mandamus relief, a petitioner

must show that: (1) the trial court clearly abused its discretion; and (2) the relator has no

adequate remedy by appeal. In re McAllen Medical Center Inc., No. 05-0892, 2008 WL

2069837 (Tex. May 16, 2008), citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-

36 (Tex.2004). A mandamus proceeding is not to be used as a substitute for an ordinary

appeal. See Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59-60 (Tex. 1991) (orig.

proceeding) (a mandamus proceeding may not be used to bypass the appeals process).

It is an extraordinary remedy available only in limited circumstances, and not for grievances

that may be addressed by other remedies such as an appeal. Walker v. Packer, 827

S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); In re Certain Underwriters at Lloyd’s, 106

S.W.3d 332, 333 (Tex.App.–Dallas 2003) (orig. proceeding).


       On a previous occasion, we denied a petition for mandamus relator filed, in which

he sought relief from a similar order dismissing a suit because of his failure to obtain the

permission of the local administrative judge as required by § 11.102 of the Civil Practice

and Remedies Code. In re Johnson, No. 07-04-0416-CV, 2004 WL 1879652

(Tex.App.–Amarillo Aug. 23, 2004) (orig. proceeding). One of our reasons for denying

mandamus relief was that relator had an adequate remedy by appeal from the dismissal

order. Id.


       In his present petition, relator points out that the trial court’s order of which he

complains dismissed his suit “without prejudice.” He cites Mossler v. Shields, 818 S.W.2d

752 (Tex. 1991) and Lentworth v. Trahan, 981 S.W.2d 720 (Tex.App.–Houston [1st Dist.]



                                             2
1998 no pet.), for the proposition that dismissal of a case with prejudice is an adjudication

on the case’s merits. He also cites us to cases holding that interlocutory orders are not

appealable absent explicit statutory provision. E.g., Kaplan v. Tiffany Development Corp.,

69 S.W.3d 212, 217 (Tex.App.–Corpus Christi 2001, no pet.). From this case law, relator

reasons that the trial court’s order dismissing his suit without prejudice was not appealable,

making mandamus relief available. The reasoning is faulty.


       Relator is correct that we generally have appellate jurisdiction only over appeals

from final judgments, and interlocutory orders may be appealed only if permitted by statute.

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Jack B. Anglin Co., Inc. v.

Tipps, 842 S.W.2d 266, 272 (Tex. 1992). A judgment that disposes of all pending parties

and claims in the record is final for purposes of appeal. Lehmann, 39 S.W.3d at 195. This

is true even though it may not be final for other purposes, such as res judicata. Id.2 Here,

there appears no dispute that the trial court’s order dismissed all relator’s claims against

all parties. Accordingly, the order was final and appealable. Id. That the dismissal was

“without prejudice” to relator’s refiling the case with permission of the local administrative

judge did not make it a nonappealable interlocutory order. See Childers v. Advanced




       2
         The court in Lentworth noted dismissals with prejudice constitute adjudications on
the merits, giving them res judicata effect. Lentworth, 981 S.W.2d at 722. Mossler also
dealt with the effect of a dismissal with prejudice on a subsequent suit presenting the same
claims. Mossler, 818 S.W.2d at 754. Neither addressed the finality of a judgment for
purposes of its appealability.

                                              3
Foundation Repair, L.P., 193 S.W.3d 897, 898 (Tex. 2006) (per curiam) (judgment

dismissing claims without prejudice held final and appealable).3


      Because he could have attacked the validity of the order through the appeal

process, we find that relator had an adequate remedy by law. Relator has the burden to

show entitlement to the relief being requested. See generally Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). Because relator’s petition

does not demonstrate that he had no adequate remedy by law, his petition is insufficient

to establish his entitlement to mandamus relief.


      Moreover, relator’s argument the trial court abused its discretion by dismissing his

case is founded on the contention that it violated his rights under the Due Process Clause

of the Fourteenth Amendment. U.S. Const., amend. XIV. Relator’s suit was dismissed

under our statutory provisions addressing litigation brought by persons who have been

determined to be vexatious litigants. Tex. Civ. Prac. & Rem. Code Ann. §§ 11.001, et seq.

(Vernon 2002). Courts have upheld our state’s vexatious litigant statute, and similar

statutes in other states, against constitutional claims like those relator asserts. See

Leonard v. Abbott, 171 S.W.3d 451 (Tex.App.–Austin 2005, pet. denied) (rejecting

constitutional challenges including due process claim based on vagueness); Wolfe v.

George, 385 F.Supp.2d 1004, 1013-16 (N.D. Cal. 2005), aff’d 486 F.3d 1120 (9th Cir. 2007)



      3
         See also Winter Garden Land Co. v. Zavalla-Dimmit Counties Water Improvement,
5 S.W.2d 606, 609 (Tex.Civ.App.–El Paso1928, writ dism’d w.o.j.) (indicating long held
principle that a judgment “without prejudice” should be regarded as final in the appealable
sense, though not in the res judicata sense, when it dismisses and disposes of all issues,
even though another action could be brought).

                                            4
(upholding California’s very similar vexatious litigant statute against constitutional

challenges including due process and equal protection); Wolfgram v. Wells Fargo Bank,

61 Cal.Rptr.2d 694 (1997), cert. denied 522 U.S. 937, 118 S.Ct. 347, 139 L.Ed.2d 270

(rejecting due process challenge to prefiling order). See also Carson v. Johnson, 112 F.3d

818, 821-22 (5th Cir. 1997) (rejecting equal protection and due process challenges to the

federal “three strikes” provision, which requires advance permission for the filing of suits

by prisoners proceeding In Forma Pauperis who have previously filed three or more

frivolous suits).


       For both these reasons, we deny relator’s petition for writ of mandamus.




                                                 James T. Campbell
                                                     Justice




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