Carol Paselk v. Justice of the Peace, Precinct 1, Yvonne King , 455 S.W.3d 268 ( 2015 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00047-CV
CAROL PASELK, Appellant
V.
JUSTICE OF THE PEACE, PRECINCT 1, YVONNE KING, Appellee
On Appeal from the County Court
Hopkins County, Texas
Trial Court No. CV14-08223
Before Morriss, C.J., Moseley and Carter,* JJ.
Opinion by Justice Moseley
______________
*Jack Carter, Justice, Retired, Sitting by Assignment
OPINION
Carol Paselk appeals an order denying her application for writ of certiorari, 1 which
argued that the Honorable Yvonne King, Hopkins County Justice of the Peace—Precinct One,
did not have jurisdiction to enter an order authorizing seizure of her fifty-seven horses. Because
Paselk’s application for writ of certiorari was untimely, we find that the County Court of
Hopkins County properly denied her requested relief. 2
“The writ of certiorari was known to the common law before statutes authorizing its use
were enacted . . . .” Ramsey v. Morris, 578 S.W.2d 809, 811 (Tex. Civ. App.—Houston [1st
Dist.] 1979, writ dism’d). “[T]he writ of certiorari as used to correct the proceedings of inferior
tribunals is not a writ of right . . . .” Id. It “issues only on special cause shown to the court to
which application is made, and the court is vested with judicial discretion to grant or refuse the
writ as justice may seem to require.” Id.; see Westwood Shores Country Club v. Hendrickson,
395 S.W.3d 298, 303 (Tex. App.—Tyler 2013, no pet.) (“The court is vested with judicial
discretion to grant or refuse the writ as justice may seem to require.”).
Chapter 821 of the Texas Health and Safety Code permits a peace officer to apply for a
warrant to seize an animal if the officer has reason to believe that the animal has been cruelly
treated. TEX. HEALTH & SAFETY CODE ANN. § 821.022(a) (West 2010). Here, Hopkins County
1
After the denial of her application for certiorari, Paselk filed a motion to vacate King’s order. Although Paselk
argues that she is also appealing from the denial of the motion to vacate, nothing in the record suggests that the trial
court ruled on this motion.
2
We note that Paselk previously appealed two convictions for cruelty to livestock after a trial that discussed the facts
and circumstances of the seizure of the horses mentioned in this appeal. In 2010, we upheld both convictions.
Paselk v. State, No. 06-09-00214-CR, 2010 WL 3034258, at *1 (Tex. App.—Texarkana Aug. 5, 2010, pet. ref’d)
(mem. op., not designated for publication); Paselk v. State, No. 06-09-00215-CR, 2010 WL 3034255, at *1 (Tex.
App.—Texarkana Aug. 5, 2010, pet. ref’d) (mem. op., not designated for publication).
2
Sheriff’s Deputy Tanner Crump swore that horses under Paselk’s care were being cruelly treated
and applied for a warrant to seize them. Pursuant to the provisions of Section 821.022(b) of the
Texas Health and Safety Code, King (1) determined that there was probable cause to believe the
horses were being cruelly treated, (2) issued a warrant for animal seizure, and (3) set a hearing
date on the matter within ten days of the issuance of the warrant. See TEX. HEALTH & SAFETY
CODE ANN. § 821.022(b) (West 2010). Paselk was given written notice of and appeared at the
hearing. After the hearing, King determined that Paselk had cruelly treated fifty-seven horses,
divested her of ownership of the animals, and ordered them to be given to the True Blue Animal
Rescue and the Bluebonnet Equine Rescue Service. See TEX. HEALTH & SAFETY CODE ANN.
§ 821.023(d), (e) (West 2010). The order was entered on May 19, 2009, and Paselk did not
appeal. See TEX. HEALTH & SAFETY CODE ANN. § 821.025 (West Supp. 2014) (providing
procedure for appeal by owner divested of ownership of an animal).
Section 51.002 of the Texas Civil Practice and Remedies Code provides that, “[a]fter
final judgment in a case tried in justice court in which the judgment or amount in controversy
exceeds $250, . . . a person may remove the case from the justice court to the county court by
writ of certiorari.” 3 TEX. CIV. PRAC. & REM. CODE ANN. § 51.002(a) (West 2008). On
February 14, 2014, Paselk filed a petition for writ of certiorari in the County Court of Hopkins
3
“The remedy by certiorari is independent of the one by appeal, and additional thereto.” Crawford v. Siglar, 470
S.W.2d 915, 917 (Tex. Civ. App.—Texarkana 1971, writ ref’d n.r.e.).
3
County, Texas, challenging the May 19, 2009, order on the ground that the justice of the peace
did not have jurisdiction to enter it. 4
The rules of practice for writ of certiorari procedures are set forth in Rule 506.4, which
states that an application for writ of certiorari “must be filed within 90 days after the date the
final judgment is signed.” TEX. R. CIV. P. 506.4(d). 5 King moved to dismiss Paselk’s
application on the ground that it was initially unsworn and was filed several years after the date
of the final judgment. 6 The County Court of Hopkins County denied Paselk’s application after
finding “that the statutory requirements for relief [were] not proper pursuant to the pleadings.”
Because Paselk’s application for writ of certiorari was untimely, we cannot say that the
County Court of Hopkins County abused its discretion in denying it. 7 Accordingly, we affirm
the denial of Paselk’s application for writ of certiorari. See Roberts v. Kirk, 43 S.W.2d 966, 967
(Tex. Civ. App.—Galveston 1931, no writ).
Bailey C. Moseley
Justice
Date Submitted: January 5, 2015
Date Decided: January 9, 2015
4
Rule 506.4 of the Texas Rules of Civil Procedure states that an application for writ of certiorari “must be granted
only if it contains a sworn statement setting forth facts showing that either: (1) the justice court did not have
jurisdiction; or (2) the final determination of the suit worked an injustice to the applicant that was not caused by the
applicant’s own inexcusable neglect.” TEX. R. CIV. P. 506.4(b).
5
The previous version of Section 506.4(d) was Rule 579 of the Texas Rules of Civil Procedure, which stated that a
writ of certiorari “‘shall not be granted after ninety days from the time the final judgment is signed.’” See Westwood
Shores, 395 S.W.3d at 303 (quoting former TEX. R. CIV. P. 579).
6
Paselk later filed an affidavit in support of her application for writ of certiorari.
7
We find our disposition on this issue dispositive of Paselk’s remaining complaints on appeal.
4