                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-09-00005-CV

                  IN RE WILLIAM CARROLL ROBERTSON
                    AND LESTER EUGENE ROBERTSON


                                Original Proceeding


                          MEMORANDUM OPINION

      In a prior proceeding, we were asked to decide certain issues. We did. We

issued an opinion. In that opinion we decided only the specific issues presented to us by

the parties then before us. We issued a judgment. Review was sought but denied. We

issued our mandate.

      The trial court has now allowed a new party to intervene in the proceeding in the

lower court. The trial court has abated the proceeding until more parties are added to

the proceeding in the lower court. The trial court has stayed the execution of the

judgment.

      We are now asked to compel the trial court to set aside these orders and enforce

our mandate.
Background facts

       William Hix owns property on Hog Creek, down-stream from property owned

by the Robertsons.

       A soil conservation flood-retarding dam was built on Hix’s property, creating a

lake of approximately 100 total surface acres, 90 of which are above real property, the

dirt, owned by Hix and approximately 10 of which are above real property owned by

the Robertsons and others.

       The Robertsons sought a declaratory judgment that Hog Creek was navigable at

the area where the lake was constructed. According to the Robertsons, upon such a

determination the lake waters would be owned by the State for the benefit of the public;

and therefore, the Robertsons, as members of the public, would be entitled to use the

water for recreation or sport.

       In the prior proceeding, the trial court so held and we modified the judgment

and affirmed the trial court’s judgment as modified. Hix v. Robertson, 211 S.W.3d 423

(Tex. App.—Waco 2006, pet. denied). The Texas Supreme Court denied further review.

Hix v. Robertson, No. 06-1119, 2007 Tex. LEXIS 1139 (Tex. Dec. 21, 2007) (rh’g denied May

18, 2008).

       Our mandate issued July 25, 2008.

Procedures Since the Mandate

       Since our mandate issued,

       1.         Coryell County moved to intervene.

       2.         Hix moved to abate the proceeding.


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       3.         Coryell County moved to abate the proceeding.

       4.         Hix moved to stay execution of the trial court’s judgment.

       5.         The trial court determined that the prior judgment was not final and
                  granted all four motions.

       By mandamus, the Robertsons bring four issues which assert the trial court erred

in its determination that the trial court’s judgment was not final and granting the

motions listed above. They request that we compel the trial court to comply with this

Court’s mandate.

Did The Tenth Court of Appeals Have Jurisdiction?

       What happens if an order/judgment is truly interlocutory but is appealed? What

happens if no one challenges the appellate court’s jurisdiction to decide an appeal that

is interlocutory? What happens if the order/judgment was erroneously intended to be

final but the error is not presented to the court of appeals and that error is, therefore,

not reviewed and decided on appeal?

       This Court proceeded to review the issues presented in the prior proceeding

which did not include an allegation or issue on the final nature of the trial court

judgment. The question now presented by this mandamus proceeding is whether the

conclusion was correct, and if it was not correct, then what is the effect on this Court’s

judgment?

       In Lehmann v. Har-Con, the Texas Supreme Court gave the appellate courts a test

to use to determine when a judgment is final for the purposes of appeal. Lehmann v.

Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). The opinion discusses two alternate tests for



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determining the finality of a judgment. The first test is that a judgment is not final

unless it actually disposes of every pending claim and party. Id. at 205. The second test

is that a judgment is not final unless it clearly and unequivocally states that it finally

disposes of all claims and all parties. Id. Restated, to meet this second test for finality,

there must be some other clear indication in the judgment that the trial court intended

the judgment to completely dispose of the entire case. Id.

       The Robertsons argue that the judgment in this case meets Lehmann’s first test.

We disagree. The judgment leaves serious questions about whether claims by one

plaintiff, whether claims against one defendant, and whether at least one counterclaim

by another defendant, were actually resolved by the judgment.

       The judgment does, however, meet the second test for finality as that test was

restated in Lehmann—that there is a clear indication the trial court intended the

judgment to completely dispose of the entire case. The portion of the judgment that

meets the second test is as follows:

              IT IS FURTHER ORDERED that the injunctions herein granted will
       become effective 30 days after this judgment is signed unless Defendants
       perfect an appeal to the Court of Appeals within that 30-day period. In
       the event that Defendants perfect an appeal within 30 days of the date this
       judgment is signed, the injunction will become effective 30 days after the
       date the appeal is dismissed, or 30 days after the date the Court of Appeals
       renders its judgment, whichever event occurs earlier. If an appeal is taken
       to the Supreme Court of Texas, the injunctions will not go into effect until
       30 days after a mandate is issued, if the Defendants are unsuccessful in the
       appeal.

Because the trial court provided for the consequences of an appeal and how that appeal

would impact the effective implementation date of the permanent injunction, it is clear



In re Robertson                                                                       Page 4
the trial court intended the judgment to completely dispose of the entire case.

Accordingly, the order was final, erroneously final because it did not actually dispose of

all the parties and claims, but final for the purposes of appeal; and we therefore had

jurisdiction to decide the issues presented on appeal. Lehmann, 39 S.W.3d at 200.

Mandamus and the Enforceability of Our Mandate

       When the trial court clerk receives the mandate from the appellate court, the

appellate court's judgment must then be enforced. TEX. R. APP. P. 51.1(b). A district

court has no discretion to interpret or review an appellate court's mandate or judgment.

In re Castle Tex. Prod. Ltd. P'ship, 157 S.W.3d 524, 527 (Tex. App.—Tyler 2005, orig.

proceeding); Martin v. Credit Protection Ass'n, 824 S.W.2d 254, 255 (Tex. App.—Dallas

1992, writ dism’d woj); Schliemann v. Garcia, 685 S.W.2d 690, 692 (Tex. App.—San

Antonio 1984, orig. proceeding). A trial court's failure or refusal to comply with a court

of appeals mandate is an abuse of discretion. Lee v. Downey, 842 S.W.2d 646, 648 (Tex.

1992). Further, a writ of mandamus will issue to compel compliance with the mandate

of an appellate court. Schliemann, 685 S.W.2d at 692; accord Wells v. Littlefield, 62 Tex. 28,

31 (1884).

       Instead of enforcing our judgment when it received our mandate, the trial court,

upon Hix’s motion, stayed the execution of the judgment. By staying the enforcement

of the judgment, the trial court refused to comply with our mandate. The trial court

had no discretion to refuse to enforce the mandate of this Court.

       Accordingly, the petition for writ of mandamus is granted. A writ will issue

only if the trial court does not withdraw the portion of its order signed December 9,


In re Robertson                                                                         Page 5
2008 that stayed the execution of the trial court’s judgment, as modified and affirmed

by the judgment of this Court, within 30 days from the date of this opinion.1



                                               TOM GRAY
                                               Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Petition granted
Opinion delivered and filed April 15, 2009
[OT06]




1 We need not review the other issues presented to us by this mandamus, so we do not decide them.
Further, while there was some discussion both in the briefs of the parties and at oral argument of the
meaning and scope of certain terms or provisions of the trial court’s judgment that was affirmed as
modified by our judgment, we have not been asked and we do not express or imply any construction,
interpretation, or meaning of, including a determination of who might be bound by, the trial court’s
judgment which we affirmed as modified.


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