Welder v. Fritz

750 S.W.2d 930, 1988 Tex. App. LEXIS 1218, 1988 WL 53018

• Court: Court of Appeals of Texas
• Decided: May 26, 1988
• Docket: 13-88-158-CV
• Status: Published

Opinions

OPINION

SEERDEN, Justice.

This mandamus proceeding is brought in an effort to require respondent, a Family Law Master of the Fourth Administrative District, to disqualify the law firm of Kelly, Stephenson & Marr, P.C., from representing Patrick H. Welder, Jr., in a divorce proceeding against relator.

On April 18, 1988, respondent signed an order denying relator’s Motion to Disqualify Attorneys Due to Prior Representation of Respondent and Her Husband, Patrick H. Welder, Jr.

At the outset the question of this Court’s jurisdiction over this matter must be resolved.

At oral arguments, both parties were requested to address the question of this Court’s jurisdiction to decide this matter. While each party indicated they believed we have such jurisdiction, each agreed to submit supplemental briefs on the subject. Subsequently, respondent filed a Motion to Dismiss for Want of Jurisdiction. In the brief filed in support of the motion, respondent contends we lack jurisdiction because the referring court did not sign an order “conforming” the master’s report as required by the Tex.Gov.Code Ann. § 54.013 (Vernon Pamph.1988). In addition, it is argued that we lack jurisdiction because there is no order of referral of the matter as required by Tex.Gov’t.Code Ann. § 54.006 (Vernon Pamph.1988). Relator has filed a Response to Motion to Dismiss for Want of Jurisdiction which contains a lengthy discussion of the procedural history of this case, copies of some documents not included in the original transcript and arguments supporting her contention that the Master Barbara Fritz performed her requisite, statutory duties.¹

While respondent’s arguments in the motion to dismiss are persuasive, and relator’s response is interesting, we believe the problem involving our jurisdiction is more basic than the procedural rules in the Government Code relating to the powers and duties of Family Law Masters as raised and discussed by the parties with regard to the order of referral or the lack of the order confirming the master’s report (Sec. 54.006). We note that the order of the master overruling relator’s motion to disqualify the law firm of Kelly, Stephenson & Marr, P.C. from representing Patrick H. Welder, Jr., recites specifically that “The parties, in open court, announced their agreement that all matters presented to the Master for hearing, would be treated as though heard by the District Court of competent jurisdiction, and all appeals from the orders of the Master would be to the Courts of Appeals ...” It is well settled, however, that appellate jurisdiction cannot be created by consent, stipulation of the parties, or waiver, either by the court or by the litigants. Hogan v. G., C. & S.F. Railway Co., 411 S.W.2d 815, 816 (Tex.Civ.App.—Beaumont 1966, writ ref’d); Consolidated Casualty Insurance Co. v. Wade, 373 S.W.2d 841, 843 (Tex.Civ.App.—Corpus Christi 1963, writ dism’d).

That a Court of Appeals has the obligation to determine its jurisdiction of its own volition in each case is not open to question. The Zoning Board of Adjustments of the City of Lubbock v. Graham & Associates, 664 S.W.2d 430 (Tex.App.—Amarillo 1983, no writ); Ex Parte Lewis, 663 S.W.2d 153 (Tex.App.—Amarillo 1983) (orig. proceeding).

The extent of the writ power of courts of appeal is set out in Tex.Gov’t. Code § 22.221 (Vernon Pamph.1988). Prior to the adoption of this code in 1983, the only original jurisdiction of intermediate appellate courts in Texas was to issue writs of mandamus or other writs necessary to enforce their appellate jurisdiction. Taylor v. American Trust & Savings Bank, 265 S.W. 727, 730 (Tex.Civ.App.—El Paso 1924, no writ); See also Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985); State v. Westergren, 707 S.W.2d 260, 261 (Tex.App.—Corpus Christi, 1986) (orig. proceeding).

Section 22.221 authorizes courts of appeals to issue writs of mandamus or other writs necessary to enforce its jurisdiction, issue writs of mandamus agreeable to principles of law regulating such writs against a judge of a district or county court in the appellate court’s district, and issue writs of habeas corpus in certain instances.

The Honorable Barbara Fritz, the respondent, is a master appointed in accordance with Tex.Gov’t.Code § 54.001 et seq. (Vernon Pamph.1988). She is not a judge of either a district or county court. In Summit Savings Ass’n. v. Garcia, 727 S.W.2d 106, 107 (Tex.App.—San Antonio, 1987) (orig. proceeding), the court held it did not have jurisdiction to mandamus the Bexar County District Clerk to release money on deposit in the registry of the court because that officer was not a judge as stated in the Government Code.

We hold that our general jurisdiction to issue writs of mandamus is limited to writs against judges of district and county courts within our district and since a family law master is neither of these, we lack jurisdiction to issue writs of mandamus relating to the master’s orders. Accordingly, the writ of mandamus is denied for want of jurisdiction.

NYE, C.J., concurs.

1 .In addition, on May 19, 1988, relator had delivered to the Court the following documents:

1. Copy of recommendations of Master signed May 19, 1988, by Barbra H. Fritz;

2. Unsigned "order" apparently submitted to the Honorable Clarence S. Stevenson, Judge in April 1988.-

3.- Order signed on May 19, 1988 (a date long after this application for mandamus was Bled, after the case was submitted on oral argument and after the time set by the Court for relator to reply to respondent’s brief or motion regarding jurisdiction) adopting the findings and conclusions of the master in this case.

Because of our disposition of this case, it is not necessary to comment on whether it would be proper for us to consider these documents.