









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-07-00052-CV

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IN RE:  GARY W. LEWIS






Original Mandamus Proceeding











Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Justice Carter





O P I N I O N


	Gary W. Lewis has filed a petition asking this Court to issue a writ of mandamus directing
the 76th Judicial District Court of Titus County to set aside its orders authorizing a receiver to sell
real property.  Gary (1) also asks this Court to issue a writ of prohibition to prohibit the trial court from
entering any further orders allowing the sale of the property.
Background
	Gary divorced his wife, Sondra, and the trial court signed the divorce decree October 28,
2002.  The divorce decree divided a 153.5-acre tract between Gary and Sondra, giving each of them
an undivided one-half separate property interest in the tract.  The decree further stated that either
party could petition the court to partition the land.  On March 26, 2007, the trial court entered an
order retroactively directing the receiver to sell the property because the receiver had actually entered
a contract to sell the real estate on February 17, 2007.  By the time the trial court signed that order,
the property had already been sold at auction.  
	This divorce and property division were the subject of an appeal previously heard by this
Court. See In re Marriage of Lewis, No. 06-03-00053-CV, 2004 Tex. App. LEXIS 6687 (Tex.
App.--Texarkana July 23, 2004, pet. denied) (mem. op.).  In that opinion, we affirmed the division
of property and noted explicitly that the 153.5-acre tract at issue was separate property, owned in
equal, undivided shares by Gary and Sondra.  We concluded the trial court had properly determined
that "each party was entitled to an undivided one-half interest in the 153.5-acre tract."  Id. at *11.
	The divorce decree specifically authorized the sale of the mobile home and improvements
located on the 153.5-acre tract, including a provision that, if the parties were unable to agree on the
sales price, the personal property could be sold by a court-appointed receiver.  However, the divorce
decree does not authorize such a sale of the real estate, but only allows each party to petition for a
partition.  On December 1, 2006, Sondra filed a motion to clarify her own March 28, 2005, order
appointing a receiver to require a bond to be posted.  The receivership order entered nunc pro tunc
December 5, 2006, authorizes Bret Thomas to take and sell a list of property--but neither the
original order nor the order nunc pro tunc authorizes taking possession of or selling the real estate. 
	Nevertheless, on March 6, 2007, Thomas filed a motion for authority to sell real estate "in
his hands as Receiver," that being all of the 153.5 acres of land.  However, at a hearing conducted
on March 26, it was stated that the property was actually sold at auction February 17, 2007.  At the
hearing before the trial court on March 26 (after the property was sold), counsel for the receiver
stated that the property had been properly auctioned off "pursuant to an order appointing him (Bret
Thomas) as receiver for this property, 153 acres, that it was - the advertising and all was reasonable."
	That statement begs the issue. There is nothing in the divorce decree authorizing the real
estate to be sold by a receiver.  Sondra argues that the sale of the real estate by a receiver is justified
because the trial court retains the power to enforce its division of property in the divorce proceeding. 
See Tex. Fam. Code Ann. § 9.006 (Vernon 2006).  It is argued that this sale was an enforcement
of section eight of the divorce decree.  That section is entitled "Provisions Dealing with Sale of
Residence" and authorizes the sale of the mobile home and improvements located on the acreage,
but does not provide for a sale of the real estate.  The sale of the mobile home and improvements
could be an enforcement of the divorce decree, but not the sale of the real estate.  The only provision
in the decree regarding a possible sale of the real estate provided that each party could file for a
partition (which they could do without the trial court's permission since they each owned an
undivided one-half interest in the 153.5-acre tract).  See Tex. Prop. Code Ann. § 23.001 (Vernon
2000).  Since the divorce decree did not order the sale of the real estate, such a sale of the parties'
separate property cannot be authorized as an enforcement of the divorce judgment. (2) 
	Gary filed a suit for partition in the divorce action, but it is clear from the proceedings that
the trial court was not acting pursuant to the provisions regarding a partition of real estate when the
order to sell the real estate was entered.  A joint owner of real property may compel a partition of the
interest or property among the joint owners.  Id.  That procedure has several requirements and
safeguards, none of which were attempted to be complied with in this sale.  The Texas Rules of Civil
Procedure set out a rather elaborate system for partition of real estate by joint owners.  The trial court
must conduct a hearing to determine the share or interest of each joint owner.  Tex. R. Civ. P. 760. 
The court then must determine whether the property, or any part thereof, is susceptible of partition
and if it is, the court shall enter a decree directing partition of the real estate and specify the share
of each party.  The court must then appoint three or more persons as commissioners to make the
partition.  Tex. R. Civ. P. 761.  Only if the court finds that a fair and equitable division cannot be
made in kind shall the court then order a sale by a receiver.  Tex. R. Civ. P. 770.  The parties in this
case have presented us with no evidence or suggestion that any of these provisions were complied
with.  We cannot find that the trial court ordered the sale pursuant to a statutory partition.  
	Simply stated, we find nothing in this record to authorize the trial court to order the sale of
these two parties' separate property.  We acknowledge that, during the pendency of the divorce
proceeding, the trial court has broad discretion to divide the marital estate in a manner it deems just
and right.  See Tex. Fam. Code Ann. § 7.001 (Vernon 2006).  That authority includes the power to
appoint a receiver in appropriate circumstances.  Nelson v. Nelson, 193 S.W.3d 624, 629 (Tex.
App.--Eastland 2006, no pet.); In re Marriage of Edwards, 79 S.W.3d 88, 96 (Tex.
App.--Texarkana 2002, no pet.); Rusk v. Rusk, 5 S.W.3d 299, 306 (Tex. App.--Houston [14th Dist.]
1999, pet. denied).  However, here, the divorce action had been completed, appealed, and affirmed
years before the trial court allowed the appointment of a receiver to sell the property.  
Mandamus
	Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion
or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. 
Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.
1992).  Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of
discretion, or, in the absence of another statutory remedy, when the trial court fails to observe a
mandatory statutory provision conferring a right or forbidding a particular action.  Abor v. Black, 695
S.W.2d 564, 567 (Tex. 1985).
	Our review is much less deferential with respect to a trial court's determination of the legal
principles controlling its ruling, because a trial court has no discretion in determining what the law
is or in applying the law to the facts.  See Walker, 827 S.W.2d at 840.  Thus, a clear failure by the
trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result
in mandamus.  Id. 
	"A trial court has no 'discretion' in determining what the law is or applying the law to the
facts."  Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996); Walker, 827 S.W.2d at 840. 
Consequently, the trial court's erroneous legal conclusion, even in an unsettled area of law, is an
abuse of discretion.  Huie, 922 S.W.2d at 927-28.
Application
	(1) The divorce decree granted to each party a separate property interest in an undivided one-half interest of the 153.5-acre tract, but did not authorize the sale of the property by a receiver. 
Consequently, the trial court was not enforcing its divorce decree when it authorized the sale of the
parties' real estate.  
	(2) Sondra's motion for appointment of a receiver only asked that the receiver be appointed
to sell the mobile home and other personal property items.  The trial court's order appointing a
receiver to sell the property did not include the real estate.  A receiver has authority to act only on
the property that is tendered to the receiver's care by a court with authority.  At the time the receiver
sold the real estate, he had no authority to do so.  Since we have found the trial court had no authority
to order the sale, without a proper partition proceeding, the order of March 26, 2007, attempting to
retroactively authorize the sale was a nullity.  
	(3) The trial court had no authority to order the separate property of Gary sold in connection
with his and Sondra's divorce.  The property had been divided, the judgment was final, and the
mandate of this Court was issued.  The division of the property in the divorce action itself was final. 
	(4) The trial court could have ordered a partition.  See Halamka, 799 S.W.2d at 354.  That
was not done.  Partition is a standard remedy when undivided property interests are concerned--and
could in the proper situation have been enforced in a separate action with or without the language
in the divorce decree.  The entirety of property could be sold only if the property was not divisible
in kind.  There is no indication or allegation that this is the situation in this case. 
	The trial court abused its discretion by issuing orders approving the sale of Gary's separate
property real estate. 
Writ of Prohibition
	Gary also asks this Court to issue a writ of prohibition.  Such a writ in an appellate court is
a creature of limited purpose.  It may issue to:  prevent interference with higher courts in deciding
a pending appeal, prevent inferior courts from entertaining suits which will relitigate controversies
which have already been settled by the issuing court, and prohibit a trial court's action when it
affirmatively appears that the court lacks jurisdiction.  Tex. Capital Bank-Westwood v. Johnson, 864
S.W.2d 186 (Tex. App.--Texarkana 1993, orig. proceeding); McClelland v. Partida, 818 S.W.2d
453 (Tex. App.--Corpus Christi 1991, orig. proceeding). 
	The writ is designed to operate like an injunction issued by a superior court to control, limit,
or prevent action in a court of inferior jurisdiction.  Holloway v. Fifth Court of Appeals, 767 S.W.2d
680 (Tex. 1989).  The writ issues only to prevent the threatened commission of a future act.  State
ex rel. Rodriguez v. Onion, 741 S.W.2d 433, 435 (Tex. Crim. App. 1987).  However, prohibition is
an extraordinary proceeding and should be used sparingly.  Guerra v. Garza, 987 S.W.2d 593, 594
(Tex. Crim. App. 1999).  To that end, the party seeking a writ of prohibition must demonstrate
(1) that it has no other adequate remedy at law and (2) that it is clearly entitled to the relief sought. 
Curry v. Wilson, 853 S.W.2d 40, 43-44 (Tex. Crim. App. 1993).  The mere possibility that a trial
court will act without jurisdiction will not justify a writ of prohibition.  See In re State, 180 S.W.3d
423, 425 (Tex. App.--Tyler 2005, no pet.); W.C.H. v. Matthews, 536 S.W.2d 679, 681 (Tex. Civ.
App.--Fort Worth 1976, orig. proceeding) (holding that prohibition would not issue until threatened
action would constitute certain interference with appellate jurisdiction). 
	We are certain the trial court will comply with the opinion of this Court and will not attempt
to take actions outside its jurisdiction.  Finding a writ of prohibition to be unnecessary, we deny it. 
	We conditionally grant relator's petition for writ of mandamus and direct the 76th Judicial
District Court of Titus County, Texas, to set aside its order of March 26, 2007.  We are confident
the trial court will comply promptly.  The writ will issue only if the trial court fails to take
appropriate action in accordance with this opinion.  


						Jack Carter
						Justice

Date Submitted:	May 8, 2007
Date Decided:		May 9, 2007
1. To avoid confusion, we will use the first names of the parties in this opinion.
2. In the divorce proceeding, the trial court found the real estate interest to be owned as
separate property of the parties; this Court affirmed that determination.  Lewis, 2004 Tex. App.
LEXIS 6687.  In a divorce proceeding, the divorce court may not divest title to the separate property
of a spouse.  Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139-42 (Tex. 1977); Halamka v. Halamka,
799 S.W.2d 351, 354 (Tex. App.--Texarkana 1990, no writ).  Neither can the divorce court order
the sale of separate property in a division of the estate of the parties.  Gerami v. Gerami, 666 S.W.2d
241, 242 (Tex. App.--Houston [14th Dist.] 1984, no writ).  

