in Re Abner L. Washington

IN THE TENTH COURT OF APPEALS No. 10-06-00011-CV In re Abner L. Washington From the 411th District Court Polk County, Texas Trial Court No. 21,498 CONCURRING Opinion While I concur in the dismissal of Washington’s Petition for Writ of Mandamus for want of jurisdiction, it is important to note that this Court was not chosen at random by a pro se inmate litigant. The majority makes no mention of the fact that this Court rendered an opinion in Washington’s appeal in Case No. 10-04-00253-CV. This Court issued an extensive opinion reversing and remanding an appeal of Washington’s civil case against the Texas Department of Criminal Justice, Institutional Division, and officials and employees of the Polunsky Unit, Chuck Biscoe, Warren Worthy, James Jones, and Dr. Johnny Mason, Jr. The case was remanded for further proceedings. The case had come to us by transfer from the Beaumont Court of Appeals pursuant to a Transfer Order rendered by the Texas Supreme Court. This is yet another problem created by the transfer of appellate cases for docket equalization purposes. While original proceedings are normally not subject to transfer pursuant to the standard transfer order, a litigant is sometimes confused or uncertain as to the court in which he should file a petition for mandamus to obtain relief after the transferee court has rendered its decision. This is particularly problematic if the original proceeding may be in some way intended to enforce the transferee court’s original opinion and judgment. I write this concurring opinion to note that it is my belief that the petition as filed by Washington is not in any way seeking the enforcement of this Court’s prior judgment, but rather is seeking to compel the trial court to act upon motions that have been filed after the remand of this proceeding to the original trial court in Polk County for further proceedings. See In re Johnson, 961 S.W.2d 478, 481 (Tex. App.—Corpus Christi 1997) (orig. proceeding). There is no reason to believe, based on Washington’s petition, that the trial court is refusing to comply with the prior judgment of this Court. I concur in the judgment dismissing this mandamus proceeding for want of jurisdiction. TOM GRAY Chief Justice Concurring opinion delivered and filed February 8, 2006 style='font-family:Palatino'> Chief Justice Dissent to denial of motion for rehearing delivered and filed July 9, 2008