Turtur v. Lee

702 S.W.2d 309, 1986 Tex. App. LEXIS 11858
CourtCourt of Appeals of Texas
DecidedJanuary 8, 1986
DocketNo. 08-85-00312-CV
StatusPublished
Cited by9 cases

This text of 702 S.W.2d 309 (Turtur v. Lee) 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
Turtur v. Lee, 702 S.W.2d 309, 1986 Tex. App. LEXIS 11858 (Tex. Ct. App. 1986).

Opinion

OPINION

STEPHEN F. PRESLAR, Chief Justice.

Relator seeks to prevent implementation of a discovery order issued by the Respondent in a divorce proceeding pending in the 257th District Court of Harris County. The real party in interest has objected to any exercise of mandamus authority by this Court over a district judge whose domicile and place of office is in Harris County, outside the territorial limits of this Court, and in connection with litigation pending in Respondent’s court. Relator contends that Section 22.221(b) of the Texas Government Code (Vernon 1986 Pamphlet) extends [310]*310statewide territorial jurisdiction to this Court in such a mandamus proceeding:

Each court of appeals may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a judge of a district or county court.

Prior to the 1985 enactment of the Government Code, the statutory authority was found in Tex.Rev.Civ.Stat.Ann. art. 1824:

Said Courts or any Justice thereof, in vacation, may issue all writs of Mandamus agreeable to the principles of law regulating such writs, against any Judge of a District or County Court.

The earlier version of Article 1824, repealed in 1983, and former Article 1823, repealed in 1985, limited the basis for this Court’s exercising original mandamus power to those instances in which it was necessary to the enforcement of our jurisdiction or to compel a district or county court judge to proceed to trial. While not expressly limited to our territorial boundaries, such a limitation was a necessary implication arising from the bases upon which relief expressed in the last version of Article 1824 and Section 22.221(b) of the Government Code that any question arises as to possible statewide power. Such suggestion arises as only one implication of the ambiguous phrase “a judge of a district or county court.” We are thus confronted with a statutory construction problem of first impression.

None of the cases cited by either side are of assistance in deciding this issue. Without exception, Relator’s cited authorities demonstrate the exercise of original jurisdiction in cases involving conflicting lower court proceedings in two supreme judicial districts. Where original writs were directed across district lines, such was done to preserve an underlying territorial authority and connection between the cause of action (at least in one forum) and the issuing court of appeals. See e.g. Rathbun v. Boyd, 155 S.W.2d 385, 387 (Tex.Civ.App.—Galveston 1941, no writ); National Debenture Corporation v. Adams, 115 S.W.2d 757, 760-761 (Tex.Civ.App.—Galveston 1938, no writ); Cattleman’s Trust Company of Fort Worth v. Willis, 179 S.W. 1115, 1117 (Tex.Civ.App.—Fort Worth 1915,, no writ). No conflict of jurisdiction between two trial courts in two different appellate districts is involved in the case before us. The extraterritorial writs issued in the above cited cases do not represent either an expansion of original jurisdiction or an exception to the established rule of geographical limitation. The relief was simply ancillary to the exercise of original jurisdiction over legal proceedings within the territorial confines of the issuing courts.

The case of Parr v. Hamilton, 437 S.W.2d 29 (Tex.Civ.App.—Corpus Christi 1968, no writ) is equally inapplicable. Two divorce petitions had been filed in two trial courts in different appellate districts. The wife’s plea in abatement was denied in the Duval County court, and she was enjoined from prosecuting her own petition in Nuec-es County. The Corpus Christi Court of Civil Appeals refused to mandamus the trial judge within its own appellate district because: 1) the theory upon which the abatement was denied was a cognizable legal principle in assessing the priority of filings, 2) the outcome of the abatement decision turned upon a factual finding of the trial judge in Duval County and 3) available appellate relief via the San Antonio Court of Civil Appeals had been waived. The Parr case actually reflects a conflict between one appellate court’s original jurisdiction and another appellate court’s appellate jurisdiction. It is of little utility in resolving the present issue.

Section 311.023 of the Texas Government Code (Vernon Pamphlet 1986) states:

In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:
(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws on the same or similar subjects;
[311]*311(5) consequences of a particular construction;
(6) administrative construction of the statute; and
(7) title (caption), preamble, and emergency provision.

While some of the above factors are purely speculative in this case, the import of the others leads this Court to construe Section 22.221(b) as an expansion of the basis for mandamus relief at this level, i.e. subject matter jurisdiction, and not an expansion of our territorial jurisdiction in original proceedings. Under the authority of Article V, Section 6 of the Texas Constitution, the legislature could without doubt provide such a statutory expansion, but we conclude that it has not done so with regard to original proceedings. See: Bond v. Carter, 96 Tex. 359, 72 S.W. 1059 (1903).

We first turn to a consideration of the territorial limits of our jurisdiction as it existed prior to the last version of Article 1824 and present Section 22.221 of the Government Code. It is unquestioned that our appellate jurisdiction has been co-extensive with the limits of our supreme judicial district. Additionally:

Said courts shall have such other jurisdiction, original and appellate as may be prescribed by law.

Tex. Const, art. V, sec. 6. This latter provision provided a basis for two significant grants of authority: 1) the Supreme Court’s authority under Tex.Rev.Civ.Stat. Ann. art. 1738 (now Government Code Sections 73.001 and 73.002) to transfer appeals from one court of appeals to another for docket equalization and 2) the grant of original mandamus jurisdiction to the courts of appeals initially found in former Articles 1823 and 1824 (now Government Code Sections 22.221(a) and (b)). Thus from the onset, this Court has been limited in the exercise of both appellate and original jurisdiction to the confines of its assigned district. The appellate limitation is express in both constitution and statute. The constitution did not actually grant the original jurisdiction but simply enabled the legislature to so provide. In doing so, the legislature provided only a limited substantive basis for exercising such original relief, a basis which necessarily carried with it a territorial limitation.

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Cite This Page — Counsel Stack

Bluebook (online)
702 S.W.2d 309, 1986 Tex. App. LEXIS 11858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turtur-v-lee-texapp-1986.