In Re: Ronald Wayne Johnson--Appeal from 3rd District Court of Henderson County

NO. 12-05-00295-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: R. WAYNE JOHNSON, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

Relator R. Wayne Johnson seeks a writ of mandamus compelling the respondent, the Honorable Jim Parsons, Judge of the 3rd Judicial District, Henderson County, Texas, to deny the plea to the jurisdiction filed by the City of Athens, real party in interest. He also seeks a writ of prohibition to prevent Respondent from entering any void order in the underlying proceeding. We deny the writs.

Discussion

Each court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court. Tex. Gov t Code Ann. 22.221(a) (Vernon 2004). Mandamus will issue only when the record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of an adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). When, as here, a motion is properly filed and pending before a trial court, considering and ruling on that motion is a ministerial act, and mandamus may issue to compel the trial court to act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App. San Antonio 1997, orig. proceeding). However, Respondent s failure to rule on a motion filed by Relator is not the issue before us. Instead, Relator seeks to compel Respondent to rule a certain way when it considers the City s plea to the jurisdiction. We may not tell the court what its ruling should be on the City s motion. See O Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex. App. Tyler 1993, orig. proceeding). Therefore, mandamus is not available.

Our jurisdiction to issue all other writs is limited to cases in which this court has actual jurisdiction of a pending proceeding. In re Nguyen, 155 S.W.3d 191, 194 (Tex. App. Tyler 2003, orig. proceeding). Because we do not have actual jurisdiction of a pending proceeding in this case, we are without jurisdiction to issue a writ of prohibition. See id. Consequently, we do not address the merits of Relator s request.

Disposition

Relator s petition for writs of mandamus and prohibition is denied.

DIANE DEVASTO

Justice

Opinion delivered October 19, 2005.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)