in Re David Berry ETAL

• Court: Court of Appeals of Texas
• Decided: August 27, 2019
• Docket: 01-19-00370-CV
• Status: Published

Opinion

Opinion issued August 27, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00290-CV ——————————— DAVID BERRY, Appellant V. FAITH TEMPLE MINISTRY INTERNATIONAL, Appellee ———————————— NO. 01-19-00369-CV NO. 01-19-00370-CV ——————————— IN RE DAVID BERRY, RELATOR

On Appeal from the County Civil Court at Law No. 3* Harris County, Texas Trial Court Case No. 1128507

* Berry filed a petition for writ of mandamus and a petition for writ of injunction from the same trial court proceeding. The underlying proceeding is Faith Temple Ministry International v. David Berry, Cause No. 1128507 in County Civil Court at Law No. 3, Harris County, the Honorable LaShawn A. Williams presiding. MEMORANDUM OPINION

Appellant, David Berry, appeals the trial court’s order concluding that

appellee, Faith Temple Ministry International, was entitled to immediate

possession of the property at 411 Berry Road, Houston, Texas. Berry also filed a

petition for writ of mandamus, a petition for writ of injunction, and various

accompanying motions related to the same trial court case.

Mandamus

This court’s writ jurisdiction is governed by section 22.221 of the Texas

Government Code. This court “may issue all writs of mandamus, agreeable to the

principles of law regulating those writs, against (1) a judge of a district, statutory

county, statutory probate county, or county court in the court of appeals

district . . . .” TEX. GOV’T CODE § 22.221(b)(1). To be entitled to mandamus relief,

a relator must show both that the trial court has clearly abused its discretion and

that relator has no adequate appellate remedy. Walker v. Packer, 827 S.W.2d 833,

839–40 (Tex. 1992); see also In re Columbia Med. Ctr. of Las Colinas Subsidiary,

L.P., 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding). It is the relator’s burden

to provide this court with a sufficient record to establish the right to mandamus

relief. Walker, 827 S.W.2d at 837; see TEX. R. APP. P. 52.3, 52.7.

2 Berry has not met his burden to provide this court a record demonstrating

that the trial court abused its discretion. Accordingly, we deny Berry’s petition for

writ of mandamus.

Appeal

On June 4, 2019, we issued an order in the appeal directing Berry to file a

response within 10 days establishing this court’s jurisdiction. A final judgment in

an eviction suit is not appealable on the issue of possession unless the premises are

used for residential purposes only. See TEX. PROP. CODE § 24.007. Berry did not

file a response to this court’s request to establish jurisdiction. The record does not

show that the premises were used for residential purposes only. Accordingly, we

do not have jurisdiction to review the order for possession. We dismiss the appeal

for lack of jurisdiction.

Injunction

This court’s injunctive powers are limited. “Each court of appeals . . . may

issue . . . all . . . writs necessary to enforce the jurisdiction of the court.” TEX.

GOV’T CODE § 22.221(a). Our use of a writ of injunction is limited to cases in

which we have actual jurisdiction of a pending proceeding. In re Murphy, 484

S.W.3d 655, 656 (Tex. App.—Tyler 2016, orig. proceeding). Because we do not

have jurisdiction in a pending proceeding, we deny Berry’s petition for writ of

injunction.

3 Conclusion

We deny the petition for writ of mandamus, and we deny the petition for

writ of injunction. We dismiss the appeal for lack of jurisdiction. All other pending

motions are denied.

Peter Kelly Justice

Panel consists of Justices Kelly, Hightower, and Countiss.