in Re: Philip J. Emerson, Jr. ( 2018 )

NO. 12-18-00350-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
PHILIP J. EMERSON, JR., § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
Philip J. Emerson, Jr., acting pro se, filed this original proceeding in which he challenges
the failure of Judge G. Timothy Boswell to disqualify himself in a lawsuit Emerson and another
plaintiff filed against several defendants.1 According to Emerson, in 2014, Judge Boswell signed
a final judgment denying the plaintiffs’ requested relief. Emerson states that he later discovered
that Judge Boswell practiced law with counsel for one of the defendants and was disqualified from
presiding over the lawsuit. He asks this Court to issue a writ of mandamus ordering Judge Jeff
Fletcher to disqualify Judge Boswell.
Emerson recently sought similar mandamus relief from the Texarkana Court of Appeals.
The Texarkana Court denied Emerson’s request for a writ against Judge Boswell, stating that an
appellate court may issue a writ of mandamus only against a judge of a district court in the appellate
court’s district and not against a former judge. In re Emerson, No. 06-18-00078-CV, 2018 WL
5091807, at *1 (Tex. App.—Texarkana Oct. 19, 2018, orig. proceeding) (mem. op.); see In re
Calpakis, No. 14-13-00422-CV, 2013 WL 3580907, at *1 (Tex. App.—Houston [14th Dist.] July
11, 2013, orig. proceeding); TEX. GOV’T CODE ANN. § 22.221(b)(1) (West Supp. 2018). “This is
because ‘the writ must be directed to someone’ who ‘would be compelled to obey it.’” Emerson,
2018 WL 5091807, at *1 (quoting In re Schmitz, 285 S.W.3d 451, 454 (Tex. 2009) (orig.
1
Respondents are the Honorable G. Timothy Boswell, former judge for the 402nd Judicial District Court in
Wood County, Texas, and the Honorable Jeff Fletcher, the current presiding judge for the 402nd Judicial District
Court in Wood County, Texas.
proceeding)). In the present case, because Judge Boswell is no longer the judge of a district court
in our appellate district, we likewise decline to issue a writ of mandamus against Judge Boswell.2
See id.
Nor will we issue a writ against Judge Fletcher to require him to disqualify Judge Boswell.
In addition to the fact that Judge Boswell no longer presides over the 402nd District Court,
Emerson admits that a final judgment was signed in 2014, from which he took no appeal.
Accordingly, granting Emerson’s requested relief would have no practical effect. See In re Smith
County, 521 S.W.3d 447, 453 (Tex. App.—Tyler 2017, orig. proceeding) (appellate court will not
issue a writ of mandamus to compel the doing of a meaningless action). We will not compel a
useless act. Id. at 455.
Under the circumstances of this case, we conclude that Emerson has not established an
entitlement to mandamus relief. We, therefore, deny Emerson’s petition for writ of mandamus.
All pending motions are overruled as moot.
JAMES T. WORTHEN
Chief Justice
Opinion delivered December 21, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
2
Emerson filed a petition for writ of mandamus with the Texas Supreme Court to challenge the Texarkana
Court’s ruling. The supreme court denied the petition. See In re Emerson, No. 18-1120 (Tex. Dec. 14, 2018).
Emerson filed a motion for rehearing, which is pending before the supreme court.
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 21, 2018
NO. 12-18-00350-CV
PHILIP J. EMERSON, JR.,
Relator
V.
HON. G. TIMOTHY BOSWELL AND HON. JEFF FLETCHER,
Respondents
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by Philip
J. Emerson, Jr.; who is the relator in Cause No. 2012-626. Said petition for writ of mandamus
having been filed herein on December 18, 2018, and the same having been duly considered,
because it is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED,
ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is,
hereby denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
3