                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00339-CV


TRACEY MURPHY                                                          APPELLANT

                                         V.

JUDGE MARC NEWMAN                                                       APPELLEE


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION1
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      Appellant Tracey Murphy appeals pro se the dismissal of his petition for

writ of mandamus. We affirm.

                               Background Facts

      Appellant filed a small claims suit in the justice court regarding “destruction

of personal property in retaliation and negligence of the public servants.”

Appellant claims he filed the case on April 5, 2007, by handing his petition to the


      1
       See Tex. R. App. P. 47.4.
prison authorities to mail. See Warner v. Glass, 135 S.W.3d 681, 684 (Tex.

2004) (“[A] pro se inmate’s claim under section 14.004 of the Inmate Litigation

Act is deemed filed at the time the prison authorities duly receive the document

to be mailed.”). Appellant states that the petition was mistakenly sent to the

district court, which then forwarded it to the justice court on May 7, 2007. On

August 26, 2008, the justice court found that the petition was untimely under

section 14.005(b) of the civil practice and remedies code and dismissed

Appellant’s case with prejudice.      See Tex. Civ. Prac. & Rem. Code Ann.

§ 14.005(b) (West 2002) (“A court shall dismiss a claim if the inmate fails to file

the claim before the 31st day after the date the inmate receives the written

decision from the grievance system.”).2 Appellant claims that he appealed the

ruling “but for some reason the court never received the Appellate brief.”

      Appellant then filed a petition for mandamus in the district court in

December 2010, seeking to compel the justice court to withdraw its dismissal of

his small claims suit and to hold a hearing on the timeliness of the filing. The

district court dismissed Appellant’s petition.     Appellant then appealed the

dismissal to this court.

                                   Discussion

      Although Appellant argues against the justice court’s dismissal of his case,

this appeal only concerns the district court’s dismissal of Appellant’s petition for

      2
      Appellant claims he received the written decision from the grievance
system on March 9, 2007.


                                         2
writ of mandamus.     A district court may only grant mandamus to protect its

jurisdiction. Tex. Const. art. V, § 8; Tex. Gov’t Code Ann. § 24.011 (West 2004);

Garrett v. Williams, 250 S.W.3d 154, 159 (Tex. App.—Fort Worth 2008, no pet.).

Here, the county court, not the district court, had appellate jurisdiction over

Appellant’s claim. See Tex. Gov’t Code Ann. § 28.052(a) (West Supp. 2011) (“If

the amount in controversy, exclusive of costs, exceeds $250, a dissatisfied party

may appeal the final judgment to the county court or county court at law.”).3

Because the district court’s jurisdiction was not threatened, the district court had

no jurisdiction to issue a writ of mandamus in this case.

      Even if the district court could have obtained jurisdiction over the case, it

could have dismissed Appellant’s petition as frivolous under chapter 14 of the

civil practice and remedies code.      See Tex. Civ. Prac & Rem. Code Ann.

§ 14.003(a) (allowing for the dismissal of an inmate’s claim if it is frivolous);

Garrett, 250 S.W.3d at 159 (holding that inmate’s petition for writ of mandamus is

subject to the requirements of chapter 14). Because the justice court no longer

had jurisdiction over Appellant’s case, his claim had no arguable basis in law or

in fact and had no realistic chance of success.4 See Tex. Civ. Prac. & Rem.


      3
       Appellant sought compensatory damages of $250 and punitive damages
of $50. See Garza v. Chavarria, 155 S.W.3d 252, 256 (Tex. App.—El Paso
2004, no pet.) (including punitive damages in calculating the amount in
controversy for purposes of determining justice court’s jurisdiction).
      4
       The justice court signed the order dismissing Appellant’s claim on August
26, 2008. The justice court’s plenary power over Appellant’s case expired thirty
days from that date, on September 25, 2008. See Tex. R. Civ. P. 329b(d) (“The

                                         3
Code Ann. § 14.003(b)(1), (2) (stating that the court may consider the claim’s

basis in law and fact and its chance of success in determining whether it is

frivolous). We hold that the district court properly dismissed Appellant’s petition,

and we overrule Appellant’s issue.

                                     Conclusion

      Having overruled Appellant’s issue, we affirm the district court’s judgment.




                                                     PER CURIAM


PANEL: GABRIEL, WALKER, and MCCOY, JJ.

DELIVERED: April 12, 2012




trial court, regardless of whether an appeal has been perfected, has plenary
power to grant a new trial or to vacate, modify, correct, or reform the judgment
within thirty days after the judgment is signed.”). Even if Appellant had filed a
motion that could be construed to extend the justice court’s plenary power, it only
could have extended jurisdiction until December 9, 2008. See Tex. R. Civ. P.
329b(c) (stating that a motion for new trial or a motion to modify, correct, or
reform a judgment is overruled by operation of law seventy-five days after the
judgment was signed); L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 444
(Tex. 1996) (“The trial court’s plenary jurisdiction cannot extend beyond 105 days
after the trial court signs the judgment.”). The justice court therefore lost
jurisdiction over Appellant’s case long before Appellant filed his petition for writ of
mandamus.


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