Opinion
No. 01-04-01069-CV
Opinion Issued November 23, 2004.
Original Proceeding on Petition for Writ of Mandamus.
Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
MEMORANDUM OPINION
On October 15, 2004, relator filed a petition for writ of mandamus, which is directed at respondent, Judge Yarbrough, judge of the 306th District Court of Galveston County. Relator has since filed an amended motion to stay the underlying proceedings in the trial court. The mandamus record presented to this Court challenges Judge Yarbrough's denial of relator's plea to Judge Yarbrough's exercising subject-matter jurisdiction over an original petition affecting the parent-child relationship and entering temporary orders pertaining to T.L.H., a child.
The Honorable Janis Yarbrough, judge of the 306th District Court of Galveston County, Texas. The underlying lawsuit is In the Interest of T.L.H., No. 04FD1206, (306th Dist. Ct., Galveston County, Texas).
We deny the petition and the amended motion for stay. See Tex. R. App. 52.8(a).
It is so ORDERED.
CONCURRING MEMORANDUM OPINION
The mandamus record presented to this Court challenges the trial judge's denial of relator's plea to the trial judge's exercise of subject-matter jurisdiction over an original petition affecting the parent-child relationship and entering temporary orders pertaining to T.L.H., a child. Except in instances that do not apply here, a trial court's ruling on a plea to the jurisdiction is a question of law that is reviewable by ordinary appeal under the de novo standard of review. Tex. Dep't. of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Mandamus properly issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate legal remedy. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). That a party must have no other adequate remedy at law is a "fundamental tenet" of mandamus practice. In re State Bar of Texas, 113 S.W.3d 730, 734 (Tex. 2003) (quoting Walker, 827 S.W.2d. at 839). The denial of a plea to the jurisdiction, which relator challenges here, is an incidental ruling and not subject to review by mandamus because the relator has an adequate remedy by ordinary appeal. See id.; see also Miranda, 134 S.W.3d at 226 (stating standard of review for appeal challenging ruling on plea to jurisdiction).
See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2004-2005) (authorizing interlocutory appeal from grant or denial of plea to the jurisdiction asserted by a governmental unit).
Because relator has an adequate remedy by ordinary appeal, I concur in denying the petition. See Tex.R.App.P. 52.8(a).