In Re Swarthout

Court of Appeals of Texas

In Re Swarthout

982 S.W.2d 92, 1998 Tex. App. LEXIS 2726, 1998 WL 227796

CourtCourt of Appeals of Texas

DecidedMay 7, 1998

Docket01-97-00944-CV

StatusPublished

Cited by6 cases

This text of 982 S.W.2d 92 (In Re Swarthout) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Swarthout, 982 S.W.2d 92, 1998 Tex. App. LEXIS 2726, 1998 WL 227796 (Tex. Ct. App. 1998).

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Opinions

OPINION

PER CURIAM.

Relator filed in this Court “Defendant’s Pro Se Petition to the First Court of Appeals to be Allowed to Appeal Cause No. 751098.” Relator petitions this Court to order the Honorable George Godwin, Judge of the 174th District Court, Harris County, Texas, to allow him to pursue an appeal in that cause number. We treat this as a petition for writ of mandamus.

Because relator’s petition does not comply with rule 52.3 of the Rules of Appellate Procedure, he is not entitled to mandamus relief.

However, as the dissenting opinion explains, the trial court clerk had a ministerial duty to forward the notice of appeal to the appropriate court of appeals. When the trial court clerk failed to do so, and this Court became aware of the failure, we ordered a copy of the notice of appeal. Therefrom, we determined relator had timely filed a notice of appeal, and he is therefore entitled to appeal. Even so, the dissent takes the position relator is entitled to no relief from this Court.

[93]*93The dissent claims this Court has “no jurisdiction” to order relator’s case placed on this Court’s docket, citing Avis Rent A Car v. Advertising Committee, 751 S.W.2d 257, 258 (Tex.App.—Houston [1st Dist.] 1988, no wiit). We respectfully disagree with our colleague.

The First and Fourteenth Courts of Appeals have developed procedures to foster comity and efficiency between the two courts. We have concurrent jurisdiction, and we transfer appeals and original proceedings from one to the other in ways that are mutually agreed upon. Apparently, in 1988 when Avis was decided, parties could choose in which court to file a mandamus proceeding. 751 S.W.2d at 258. Today, the First and Fourteenth Courts have a procedure in place assuring that mandamus proceedings are filed “every-other-one” in each court, meaning the parties cannot simply choose the court of appeals in which to file a petition. Thus, the concern about “forum shopping” in Avis is no longer well founded. Further, Avis deals with the issue of whether a party is entitled to proceed in a particular court— Avis does not address the jurisdiction of the First and Fourteenth Courts of Appeals to make decisions between themselves about the docketing of cases.

Because we have considered and ruled on relator’s mandamus petition, and because we have determined relator is entitled to an appeal, we consider it appropriate, in accordance with the usual and customary practice between the First and Fourteenth Courts of Appeals, to docket the appeal as cause No. 01-98-00491-CR in the First Court of Appeals, and we direct the Clerk of this Court to do so. We also direct the Clerk of this Court to place copies of all documents in the file of cause No. 01-97-00944-CV in the file of the new appellate cause number, 01-98-00491-CR.

TAFT, J., concurring and dissenting.

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OPINION

PER CURIAM.

Relator filed in this Court “Defendant’s Pro Se Petition to the First Court of Appeals to be Allowed to Appeal Cause No. 751098.” Relator petitions this Court to order the Honorable George Godwin, Judge of the 174th District Court, Harris County, Texas, to allow him to pursue an appeal in that cause number. We treat this as a petition for writ of mandamus.

Because relator’s petition does not comply with rule 52.3 of the Rules of Appellate Procedure, he is not entitled to mandamus relief.

However, as the dissenting opinion explains, the trial court clerk had a ministerial duty to forward the notice of appeal to the appropriate court of appeals. When the trial court clerk failed to do so, and this Court became aware of the failure, we ordered a copy of the notice of appeal. Therefrom, we determined relator had timely filed a notice of appeal, and he is therefore entitled to appeal. Even so, the dissent takes the position relator is entitled to no relief from this Court.

[93]*93The dissent claims this Court has “no jurisdiction” to order relator’s case placed on this Court’s docket, citing Avis Rent A Car v. Advertising Committee, 751 S.W.2d 257, 258 (Tex.App.—Houston [1st Dist.] 1988, no wiit). We respectfully disagree with our colleague.

The First and Fourteenth Courts of Appeals have developed procedures to foster comity and efficiency between the two courts. We have concurrent jurisdiction, and we transfer appeals and original proceedings from one to the other in ways that are mutually agreed upon. Apparently, in 1988 when Avis was decided, parties could choose in which court to file a mandamus proceeding. 751 S.W.2d at 258. Today, the First and Fourteenth Courts have a procedure in place assuring that mandamus proceedings are filed “every-other-one” in each court, meaning the parties cannot simply choose the court of appeals in which to file a petition. Thus, the concern about “forum shopping” in Avis is no longer well founded. Further, Avis deals with the issue of whether a party is entitled to proceed in a particular court— Avis does not address the jurisdiction of the First and Fourteenth Courts of Appeals to make decisions between themselves about the docketing of cases.

Because we have considered and ruled on relator’s mandamus petition, and because we have determined relator is entitled to an appeal, we consider it appropriate, in accordance with the usual and customary practice between the First and Fourteenth Courts of Appeals, to docket the appeal as cause No. 01-98-00491-CR in the First Court of Appeals, and we direct the Clerk of this Court to do so. We also direct the Clerk of this Court to place copies of all documents in the file of cause No. 01-97-00944-CV in the file of the new appellate cause number, 01-98-00491-CR.

TAFT, J., concurring and dissenting.

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Bluebook (online)

982 S.W.2d 92, 1998 Tex. App. LEXIS 2726, 1998 WL 227796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-swarthout-texapp-1998.

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