In this mandamus proceeding, Relator seeks a writ requiring the Respondent, a district judge, to enter judgment in his favor in a garnishment suit and ordering the judge to hold a trial to determine attorney's fees and costs in connection with the garnishment, and further, staying all proceedings in the underlying child support action until all costs and attorney's fees incurred in this Court in connection with a previous appeal and in the court below have been paid. For the reasons stated herein, we deny the writ.
Insofar as it is relevant to this proceeding, the present case arose when Peggy Lee Varner Howe (Howe) filed a motion to modify in a suit affecting the parent-child relationship (SAPCR) in the 255th District Court of Dallas County
Thereafter, a hearing was held in the trial court in response to Varner's motion to determine the costs of appeal, as a result of which that court rendered judgment that Varner recover from Howe $3,298.75 and that he be given an execution to assist in the recovery of such costs. Based on that judgment, Varner ran a writ of garnishment
On May 17, 1994, a hearing was held on all motions then pending before the Honorable Don Koons, presiding judge of the 255th District Court, in both causes, including Varner's motion for stay and deposit for costs in the SAPCR proceeding and his motion for judgment in the garnishment suit, as well as Howe's motion to dissolve in the latter action. On June 15, 1994, the trial court issued a pretrial order in the SAPCR proceeding in which after holding that Varner was "entitled to have execution issued concerning the costs of his successful appeal," denied Varner's requests for a stay and to rule Howe for costs. It is upon the latter rulings that Varner seeks relief by way of mandamus. Relying on Witherspoon v. Daviss, 163 S.W. 700 (Tex.Civ.App.—Austin 1914, no writ) and City of Garland v. Long, 722 S.W.2d 49 (Tex.App.—Dallas 1986, no writ), Varner argues that this Court has the jurisdiction and authority to issue a writ of mandamus commanding Judge Koons to render judgment in the garnishment suit against the bank and to stay all further action in the SAPCR proceeding until all costs and attorney's fees have been paid, or in the alternative, to stay the SAPCR proceedings until the judgment for costs on appeal is paid, or in another alternative, to rule Howe for such costs pursuant to TEX.R.CIV.P. 143 and 146.
This Court acquired jurisdiction of the appeal from the 1991 child support judgment
This Court, having rendered a final judgment and mandate on the appeal transferred to it, has no further jurisdiction or authority in the SAPCR proceeding other than to require the trial court to carry out its judgment and mandate upon a showing by Varner that Judge Koons had failed or refused to obey that mandate in any respect. The first order set forth in the mandate reversed the judgment of the trial court and remanded the cause for new trial. The trial court has obeyed this order by setting the cause for retrial.
The second part of the mandate, and the one which has led to the current controversy, gave Varner judgment for "all costs incurred by reason of this appeal, for which let execution issue,...." [Emphasis added.] Varner asserts that this judgment and the judgment subsequently rendered by the trial court for appellate costs gave him the right to recover all of such costs through the garnishment suit or by execution before the trial court can allow Howe over his objection to proceed with her SAPCR action. However, the order and mandate of this Court, the judgment of the trial court and the pretrial order merely gave him the right to require the clerk of the trial court to issue a writ of execution and to require the sheriff to levy on any of Howe's property subject to execution. Despite the clear language giving him the right to a writ of execution, Varner admits that he has never requested the clerk to issue execution let alone attempted to levy on Howe's property. He contends first, that garnishment is included within the meaning of "execution" and second, that under City of Garland he is entitled to recover fully his previous appellate costs before the SAPCR action is allowed to proceed and prior to its final disposition.
Because we conclude that the trial court has fully complied with our mandate, it is not for us to determine whether "execution" includes "garnishment" and whether garnishment is available at this stage of the SAPCR proceeding. Although Howe has agreed that the funds in the one bank account are subject to the garnishment action and may be taken by Varner, there are important differences between a writ of execution, to which Varner clearly has a right, and a writ of garnishment which involves the rights and obligations of a third party. Garnishment actions, long considered harsh remedies, are governed by statute, the provisions of which are to be strictly construed. Owen Elec. Supply, Inc. v. Brite Day Constr., Inc., 821 S.W.2d 283, 286 (Tex.App.—Houston [1st
Turning now to Varner's reliance on City of Garland for the proposition that he is entitled to execution for his appellate costs before the trial court disposes of the SAPCR retrial. He interprets this to mean that he is entitled to have his judgment for such costs fully satisfied, whether by execution or by garnishment, prior to the commencement of the retrial. Varner reads too much into City of Garland and in that sense, his reliance is misplaced. Although City of Garland and the instant case both involve mandates awarding the successful appellants' their costs on appeal for which they are to have execution, in City of Garland, the district clerk refused to issue a writ of execution. 722 S.W.2d at 50. The Dallas Court of Appeals held that the relator was entitled to mandamus to require the clerk to issue the writ before the trial court disposed of the pending cause.
We hold that by his judgment for appellate costs and by his pretrial order, the trial court has fully complied with the order and mandate of this Court and is not subject to mandamus. Accordingly, we deny Varner's petition for writ of mandamus and assess all costs incurred in the mandamus proceeding against him.