In Re: David L. Smith--Appeal from County Court of Henderson County

NO. 12-07-00153-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: DAVID L. SMITH, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

David L. Smith filed a petition for writ of mandamus challenging the county court s dismissal of his appeal from an unfavorable judgment in a forcible detainer action. The respondent is the Honorable David H. Holstein, Judge of the County Court of Henderson County. Jeremy Conner, who brought the forcible detainer action against Smith, is the real party in interest. We deny the petition.

Background

On December 29, 2006, Conner filed an action in justice court for forcible detainer against Smith. Following a nonjury trial, the justice court entered a judgment in favor of Conner. Smith promptly filed a notice of appeal and an affidavit of indigence with the justice court. No contest was filed to the affidavit of indigence.

The respondent dismissed Smith s appeal, finding that Smith had failed to post the necessary appeal bond. It is unclear from the record whether the respondent was aware that Smith had filed an affidavit of indigence and that the affidavit had not been contested. This original proceeding followed.

Availability of Mandamus

Smith alleges in his petition that the respondent erred by dismissing his appeal. According to Smith, his affidavit of indigence was not contested, and, therefore, approved. See Tex. R. Civ. P. 749a. Smith alleges that, as such, his appeal to county court was perfected and no bond was required. See Tex. R. Civ. P. 749c. Finally, Smith argues that mandamus is appropriate because the respondent s order has the effect of placing his right to possession and occupancy of his homestead in immediate jeopardy.

Mandamus is an extraordinary remedy and was intended to be available only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). For Smith to be entitled to relief by mandamus, he must meet two requirements. First, he must show that the trial court clearly abused its discretion. Id. Second, he must show that he lacks an adequate remedy at law, such as an ordinary appeal. See id.

Here, Smith has not shown that another remedy, such as an appeal, was unavailable and inadequate.1 Instead, it appears that the remedy of an ordinary appeal was both available and adequate. See Teague v. Southside Bank, No. 12-03-00003-CV, 2003 WL 21356052, at *1-2 (Tex. App. Tyler June 11, 2003, no pet.) (mem. op.) (appeal from trial court s denial of request to proceed without advance payment of costs where affidavit of indigence had not been contested). Therefore, under the facts presented, we have no choice but to hold that Smith is not entitled to mandamus relief because Smith has failed to show that there was no adequate remedy by ordinary appeal.2 See Walker, 827 S.W.2d at 840.

Disposition

Having held that Smith failed to show that there was no adequate remedy by ordinary appeal, we need not address whether the respondent abused his discretion in dismissing Smith s appeal. Smith s petition for writ of mandamus is denied. Smith also moved for a stay of the underlying proceeding until we issued an opinion on the merits of his mandamus petition. That motion is overruled as moot.

JAMES T. WORTHEN

Chief Justice

Opinion delivered July 2, 2007.

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

(PUBLISH)

1 Smith filed a notice of appeal in this court, but the appeal was dismissed because Smith failed to comply with Rules 5 and 32.1 of the Texas Rules of Appellate Procedure. See Smith v. Conner, No. 12-07-00133-CV, 2007 WL 1492059 (Tex. App. Tyler May 23, 2007, no pet. h.) (mem. op.) (per curiam).

2 We note that Smith may no longer be able to pursue a remedy by ordinary appeal. Nonetheless, the mere fact that Smith s appeal has been dismissed for failing to follow the Texas Rules of Appellate Procedure is not proof that an adequate remedy does not exist. Cf. Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994) (orig. proceeding) (discussing two exceptions in which one may fail to pursue an available ordinary appeal and yet be entitled to mandamus relief). Instead, it is merely proof that Smith failed to properly exercise his right to pursue this remedy.