Don’t Leapfrog the Trial Court: Appellate Courts Lack Jurisdiction to Mandamus Sheriffs Who Refuse to Enforce Writs
Memorandum Opinion by Justice Palafox, 08-26-00060-CV, January 30, 2026.
On appeal from Unknown
Synopsis
The El Paso Court of Appeals dismissed a petition for writ of mandamus directed at a county sheriff, holding that intermediate appellate courts lack original jurisdiction to compel action from non-judicial officers under Texas Government Code § 22.221(b) unless the writ is necessary to protect the court’s own jurisdiction. The Court further denied alternative relief against the trial court, finding the relator failed to satisfy the stringent two-prong test required for extraordinary relief.
Relevance to Family Law
For family law practitioners, the enforcement of a final decree often hinges on the successful execution of writs of possession or execution, particularly when dealing with recalcitrant spouses and high-value personal property or real estate. This case serves as a critical procedural reminder: when a sheriff or constable fails to execute a court’s process, the court of appeals is not the first stop. Seeking to “leapfrog” the trial court by filing a mandamus against an executive officer in the appellate court will result in a jurisdictional dismissal. Enforcement of ministerial duties by county officials must be litigated in the district court first, maintaining a clear distinction between the trial court’s original mandamus jurisdiction and the appellate court’s limited supervisory jurisdiction.
Case Summary
Fact Summary
Relator Hector Hernandez obtained a writ of execution issued on January 28, 2025. When the Sheriff of El Paso County purportedly failed or refused to enforce the writ, Hernandez sought the intervention of the Eighth Court of Appeals. He filed an original proceeding requesting a writ of mandamus to compel the Sheriff to act. Recognizing the potential jurisdictional hurdle, Hernandez also requested, in the alternative, that the Court of Appeals order the trial court to issue a writ of possession to mitigate the harm caused by the Sheriff’s inaction. The record did not indicate that Hernandez had first pursued a mandamus action against the Sheriff in the district court, nor did it establish a specific refusal by the trial court that rose to the level of an abuse of discretion.
Issues Decided
- Does a Texas Court of Appeals have original mandamus jurisdiction over a county sheriff to compel the enforcement of a writ of execution?
- Did the relator establish entitlement to mandamus relief against the trial court for failing to remedy the Sheriff’s inaction?
Rules Applied
The Court primarily applied Texas Government Code § 22.221(b), which strictly limits the mandamus jurisdiction of courts of appeals to writs against a “judge of a district, statutory county, statutory probate, or county court” within the appellate district. The Court also looked to Texas Government Code § 22.221(a) and In re Coronado, 980 S.W.2d 691, 692 (Tex. App.—San Antonio 1998, orig. proceeding), which provide a narrow exception allowing writs against other parties only when “necessary to enforce the jurisdiction of the court.” Finally, the Court applied the standard for mandamus relief against a trial court established in In re Kappmeyer, 668 S.W.3d 651, 654 (Tex. 2023), requiring a showing of a clear abuse of discretion and the lack of an adequate remedy by appeal.
Application
The Court’s analysis focused on the statutory boundaries of its power. In examining § 22.221(b), the Court noted that a sheriff is conspicuously absent from the list of officials subject to the court’s original mandamus jurisdiction. While Hernandez attempted to invoke § 802.003 of the Government Code to bridge this gap, the Court dismissed this argument, noting that the cited statute applies only to the governing bodies of public retirement systems and grants jurisdiction to trial courts, not appellate courts. The Court then evaluated whether the “jurisdictional preservation” exception applied; because there was no pending appeal or other matter where the Sheriff’s inaction threatened the Court’s ability to decide a case, the exception remained dormant.
Turning to the alternative request against the trial court, the Court adopted a narrative of procedural failure on the part of the Relator. To obtain mandamus against a judge, a relator must prove the judge violated a ministerial duty or reached an arbitrary legal conclusion. Because the Relator could not demonstrate that the trial court was legally required to step in and perform the Sheriff’s role or that the Relator had exhausted other legal avenues (such as a suit against the Sheriff in district court), the high burden for mandamus was not met.
Holding
The Court dismissed the petition for want of jurisdiction to the extent it sought relief against the Sheriff of El Paso County. The Court reasoned that the Sheriff is not among the judicial officers enumerated in the Government Code over whom the Court exercises original mandamus authority.
The Court denied the petition to the extent it sought relief against the trial court. The Court concluded that the Relator failed to meet the heavy burden of demonstrating that the trial court’s handling of the post-judgment enforcement process constituted a clear abuse of discretion for which there was no adequate remedy at law.
Practical Application
This ruling emphasizes the necessity of a “bottom-up” approach to enforcement litigation. If a sheriff or constable refuses to levy on property or execute a writ of possession following a divorce, the practitioner must file an original petition for writ of mandamus against that officer in the district court. The district court has original jurisdiction over such matters. Only if the district judge then refuses to act—and that refusal is an abuse of discretion—does the matter become ripe for the Court of Appeals via a mandamus directed at the judge.
Checklists
Enforcing Writs Against Non-Compliant Officers
- Verify the Official’s Duty: Ensure the writ is validly issued and the duty of the sheriff/constable is ministerial (not discretionary).
- Establish a Record of Non-Feasance: Document the delivery of the writ to the officer and any specific refusal to act.
- Select the Correct Forum: File your Petition for Writ of Mandamus against the Sheriff in the District Court, not the Court of Appeals.
- Cite Proper Authority: Use Tex. Gov’t Code § 24.011 (granting district courts the power to issue writs of mandamus) rather than § 22.221.
Avoiding Jurisdictional Dismissal in the COA
- Check the Statutory List: Before naming a respondent in an appellate mandamus, confirm they are a district or county judge under § 22.221(b).
- The “Jurisdictional Threat” Analysis: If the respondent is not a judge, ask: Does their action prevent the Court of Appeals from exercising its own jurisdiction over a pending appeal? If no, the COA has no power.
- Exhaustion of Remedies: Ensure you have asked the trial court for the specific relief requested and received a clear “no” on the record before seeking extraordinary relief.
Citation
In re Hector Hernandez, No. 08-26-00060-CV, 2026 WL [Pending] (Tex. App.—El Paso Jan. 30, 2026, orig. proceeding) (mem. op.).
Full Opinion
Family Law Crossover
In high-conflict property divisions, “winning” the decree is only half the battle. When a party is awarded a specific asset—such as a vehicle, a business’s inventory, or a collection of firearms—and the sheriff refuses to execute the writ of possession because of a “peace officer’s discretion” or simple bureaucratic inertia, the temptation to rush to the Court of Appeals is high. However, In re Hernandez confirms that doing so is a strategic error that results in wasted fees and lost time.
Strategic litigators can weaponize this ruling by using it to defeat “emergency” appellate stays or mandamus petitions filed by opposing counsel who have failed to follow the proper jurisdictional ladder. If your opponent leaps to the COA to complain about enforcement delays, a jurisdictional motion to dismiss based on Hernandez is your first and best line of defense. Conversely, to effectively move the needle, the family lawyer must be prepared to sue the sheriff in district court, creating a new litigation front that creates leverage and forces the county’s legal counsel to pressure the sheriff’s office to perform its ministerial duties.
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