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At a Glance:
In re State
February 14, 2005
159 S.W.3d 203
Published Opinion

In re State

Court of Appeals of Texas,


In re STATE of Texas.

No. 03–04–00684–CV.


Feb. 14, 2005.

Attorneys & Firms

*204 Don Cruse, Asst. Solicitor Gen., Austin, for Relator.

Javier P. Guajardo, Jr., Guajardo & Guajardo, PLLC, Austin, Jose Garza, San Antonio, Daniel R. Torrez, Dallas, for Real Parties in Interest.

Before Chief Justice PURYEAR.



The State of Texas filed a petition for a writ of mandamus with this Court contending that the district court issued a void order assessing attorneys’ fees in a case after this Court’s mandate had issued. Because we hold that the trial court had jurisdiction over the parties and the subject matter at issue, we deny the petition.


The State’s petition arises out of proceedings in the district court following the issuance of our mandate in Id. at 126. Our mandate specifically reversed and rendered judgment and further ordered that “appellees pay all costs relating to this appeal, both in this Court and the court below.” An attached bill of costs itemized the fees paid to the clerk’s office and the cost of the reporter’s and clerk’s records.

After the State’s petition for review was denied by the supreme court, Anderson Courier filed a motion in the district court seeking attorneys’ fees. This motion was later incorporated into a motion for supplemental relief pursuant to section 37.011 *205 of the declaratory judgment act which also sought a permanent injunction against the enforcement of the statute. The State filed a plea to the jurisdiction contending that the district court lacked jurisdiction to enter an award of attorneys’ fees. The district court denied the plea to the jurisdiction holding that Anderson Courier was

not prohibited by the Mandate issued in this cause from seeking supplemental relief as authorized by Section 37.011 of the Texas Declaratory Judgment Act; provided, however, that the Court reserves ruling on whether such supplemental relief can or should include an award of attorneys’ fees.

While litigation over the issue of attorneys’ fees continued, Anderson Courier reached an agreement in which the Travis County Attorney agreed to permanently refrain from enforcing the statute and Anderson Courier agreed not to seek attorneys’ fees from Travis County or the Travis County Attorney. The suit against the State remained, and the district court ultimately held that attorneys’ fees were appropriate and awarded $368,857 in attorneys’ fees at the trial level, plus interest, to Anderson Courier pursuant to sections 37.009 and 37.011 of the declaratory judgment act. The State filed both a notice of appeal from the district court’s judgment and this petition for a writ of mandamus.


The issue raised in this petition is limited to the question of the district court’s jurisdiction to consider Anderson Courier’s request for attorneys’ fees after this Court had rendered judgment and issued its mandate. So long as the district court had jurisdiction, the district court’s order is not void, the question of attorneys’ fees is appropriately heard on appeal, and the petition should be denied.1

Mandamus is proper if a trial court issues an order beyond its jurisdiction. In re Velte, 140 S.W.3d 709, 712 (Tex.App.-Austin 2004, orig. proceeding).

“Jurisdiction refers to a court’s authority to adjudicate a case.” Reiss, 118 S.W.3d at 443.

The State contends that, after this Court rendered judgment in the appeal, the district court only had jurisdiction to enforce the appellate mandate. See Dallas County v. Sweitzer, 971 S.W.2d 629, 630 (Tex.App.-Dallas 1998, no pet.) (district court has no *206 jurisdiction to review or interpret appellate judgment). Our mandate only ordered the State to pay “costs” relating to the appeal, and thus, the state argues that the award of attorneys’ fees was beyond the scope of the mandate and outside of the district court’s jurisdiction.

There is a legitimate question as to whether a trial court’s order that is outside of the scope of an appellate mandate is void or merely voidable. The Houston Court of Appeals, Fourteenth District, thoroughly discussed the issue in Kenseth v. Dallas County, 126 S.W.3d 584, 599 (Tex.App.-Dallas 2004, pet. denied) (order not void where trial court misinterpreted mandate). However, we need not resolve this question in this case because we find that the trial court had jurisdiction under section 37.011 of the declaratory judgment act.

Our review of the record indicates that the district court awarded attorneys’ fees as supplemental relief pursuant to section 37.011 of the declaratory judgment act. The issue was clearly framed as such in the district court’s order denying the State’s plea to the jurisdiction and the final judgment awarding attorneys’ fees cited sections 37.009 and 37.011 of the declaratory judgment act, not the appellate mandate.

Moore, 985 S.W.2d at 157.

Courts have granted supplemental relief under the declaratory judgment act after an appeal and may award relief not requested on appeal. In Id. at 336. Despite the fact that the issue was not raised on appeal, the court explained that the city was entitled to further relief *207 under the declaratory judgment act:2

The rationale for this apparent departure from the usual rule of res judicata is that the losing party in a declaratory judgment act can normally be expected to recognize the rights declared by the judgment and act accordingly, but that if he fails to do so, the court should have ample power to enforce the judgment by subsequent coercive orders, whether or not such relief was sought in the original action.


The dissent cites Valley Oil, 499 S.W.2d at 335–36. They do not hold that a trial court lacks subject matter jurisdiction absent such a showing. A trial court’s jurisdiction to act does not simply dissolve if an appellate court later disagrees with that court’s determination that the relief was necessary and proper.

We also look to federal case law because section 37.002(c) of the declaratory judgment act compels us to construe the statute in harmony with federal law concerning declaratory judgments. See In re Bicoastal Corp., 156 B.R. 327, 331 (Bankr.M.D.Fla.1993).

We hold that the district court had jurisdiction to consider the request pursuant to section 37.011 of the declaratory judgment act. See Reiss, 118 S.W.3d at 443 (errors other than jurisdiction *208 to be corrected through ordinary appellate process). The district court’s order awarding attorneys’ fees was not void and the State’s petition for a writ of mandamus is denied.

DAVID PURYEAR, Justice, dissenting.

Mandamus is an appropriate means of compelling compliance with an appellate mandate. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990). Because I disagree with the majority’s conclusion that the trial court had jurisdiction over the issue, I dissent from the decision to deny the petition for writ of mandamus.

Factual Background

As noted by the majority, the real parties in interest (collectively, “Anderson Courier”) raised only one issue on appeal—whether the statute was constitutional. Anderson Courier did not raise the issue of whether it could recover attorney’s fees incurred in prosecuting the underlying declaratory judgment action. We determined the only issue presented, holding the statute to be unconstitutional, and rendered judgment; we ordered the State to pay all costs but did not remand any part of the proceeding to the trial court for further determination or interpretation. Our judgment stated that the trial court’s judgment was reversed, that judgment was rendered that the statute was unconstitutional, and that the State was to “pay all costs relating to this appeal, both in this Court and the court below.” The mandate commanded the trial court “to observe the order of [the] Court of Appeals ... and in all things have the order duly recognized, obeyed, and executed.” The bill of costs referenced by the majority itemized fees and costs incurred in the appeal.

After our mandate issued, Anderson Courier filed in the trial court a “Motion for Attorneys’ Fees and Costs,” requesting attorney’s fees incurred in the underlying declaratory action as prevailing parties under the UDJA. See Tex.Code Civ. Prac. & Rem.Code Ann. § 37.009 (West 1997). When the State objected, Anderson Courier filed a “Motion for Supplemental Relief,” seeking attorney’s fees as “supplemental relief pursuant to Section 37.011” of the UDJA. Anderson Courier argued that our mandate “reinvest[ed]” the trial court with “jurisdiction and authority to grant supplemental relief that is necessary and proper.” Anderson Courier concluded its motion for supplemental relief with a prayer that the trial court grant “necessary and proper supplemental relief including the issuance of a permanent injunction against the enforcement of” the unconstitutional statute as well as attorney’s fees and costs.


First, I would note that by its failure to request this Court to consider whether it was entitled to attorney’s fees as part of the original appeal, Anderson Courier waived the issue. See Tex.R.App. P. 38.1 (appellant must present issues presented for appellate review); *209 State v. Ruiz Wholesale Co., 901 S.W.2d 772, 776 (Tex.App.-Austin 1995, no writ).

Anderson Courier’s Request for “Supplemental Relief”

No Grounds Alleged for Supplemental Relief

In the prayer for relief in its second motion, the motion for “supplemental relief,” Anderson Courier made a cursory request for an injunction against enforcement of the unconstitutional statute. However, there was no such request made in the body of the motion. Nor did Anderson Courier even allege the possibility that the State might attempt to enforce the statute in spite of our opinion, much less argue that injunctive relief was necessary or proper.

Without evidence to the contrary, we presume that a defendant will obey and abide by a declaratory judgment. Howell, 143 S.W.3d at 433. Attorney’s fees play no role in the enforcement of a judgment and, thus, are not the proper subject of such a request.

In this situation, the exercise of the court’s power to grant ancillary relief requires some showing that the State will not comply with the judgment. section 37.011.

*210 Not a Proper Motion

In addition to its failure to show a need for ancillary relief, Anderson Courier filed a motion, not a petition for supplemental relief. Section 37.011 of the UDJA allows a trial court to grant further relief if necessary or proper, but such application must be made by petition. section 37.011.1

Anderson Courier Mooted Its Own Issue

Finally, I note that Anderson Courier brought forth an agreed order between the county attorney and Anderson Courier. In the order, the county attorney agreed that Anderson Courier had incurred considerable attorney’s fees and agreed not to contest Anderson Courier’s attempts to obtain an award of attorney’s fees. The county attorney also agreed to “permanently refrain” from enforcing the statute, reserving the right to enforce the statute if it were declared constitutional by a higher court. This order shows that the only agency with the legal authority to enforce the statute in violation of our judgment had no such intentions and therefore that there was no possible controversy requiring ancillary relief. The agreed order essentially moots Anderson Courier’s request for ancillary or supplemental injunctive relief. Without a showing of any ripe controversy, “a threshold issue that implicates subject matter jurisdiction” and “emphasizes the need for a concrete injury for a justiciable claim to be presented,” the trial court lacked jurisdiction. Patterson v. Planned Parenthood of Houston & SE Tex., Inc., 971 S.W.2d 439, 442 (Tex.1998).

Did Our Mandate “Reinvest” the Trial Court with Jurisdiction?

An appellate mandate is “ ‘a command of the court, which the court is authorized to give and which must be obeyed.’ ” Teston v. Brannin, 261 S.W. 788, 789 (Tex.Civ.App.-El Paso 1924, no writ) (once supreme court rendered judgment, “the case was finally disposed of and upon the filing of the mandate ... nothing further remained for the [trial] court to do except issue the necessary process to execute the judgment ... rendered”).

When an appellate judgment does not remand any part of a cause for further proceedings and does not authorize an award of damages or reconsideration of any issue, a trial court lacks jurisdiction to award additional relief or damages. (Olvera was “somewhat ambiguous” on whether trial court’s award of attorney’s fees as costs “was a question of jurisdiction or a question of simple error. Although we stated the trial court had ‘no jurisdiction’ to do anything beyond the appellate mandate, we also found the trial court ‘abused its discretion’ in entering the new awards.”).

In this case, we rendered judgment and ordered the State to pay all costs. There was no money or other subject matter held in a registry that had to be disbursed. Our judgment and mandate did not reinvest the trial court with any jurisdiction to “interpret” our orders, and the bill of costs itemized the fees and costs incurred in the appeal, thus obviating any need for the trial court to make determinations as to costs.


Anderson Courier waived any claim for attorney’s fees incurred in the original appeal and did not show its entitlement to attorney’s fees in the enforcement of our judgment. The majority seems to hold that the trial court’s mere reference to section 37.011.

The trial court’s plenary powers were long expired, In re Southwestern Bell Tel. Co., 35 S.W.3d at 605. I would grant mandamus relief and I respectfully dissent from the majority’s decision to deny such relief.



By contrast, the dissent discusses issues of waiver and the merits of whether Anderson Courier’s request for attorneys’ fees constitutes necessary and proper supplemental relief under section 37.011 of the declaratory judgment act. This is presumably because the dissent believes that the issue of jurisdiction is interrelated with the merits of Anderson Courier’s claim. Because we do not find that subject matter jurisdiction is implicated, we will refrain from addressing the dissent’s arguments on the merits so as to avoid prejudging the State’s appeal pending before us.


The language of the declaratory judgment act’s supplemental relief provision cited in Tex.Rev.Civ. Stat. Ann. art. 2524–1 (Vernon 1965).


I note that the trial court’s order stated that the attorney’s fees were “reasonable and necessary.” This tracks language used in section 37.009 of the UDJA, see section 37.011 and its limited grant of power to give supplemental relief.

End of Document