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COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00368-CV

IN RE MATTHEW 

JAMES LEACHMAN

RELATOR

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ORIGINAL PROCEEDING

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MEMORANDUM OPINION1

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I. Introduction

Pro se Relator Matthew James Leachman, an inmate, complains that 

Respondent, the Honorable W. Bernard Fudge, abused his discretion by granting 

Real Parties in Interest Kerri Hansford and Rick Thaler’s motion for partial 

dismissal and motion to strike. We conditionally grant Leachman’s petition for 

 

1See Tex. R. App. P. 47.4.
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writ of mandamus and direct Respondent to vacate his order granting Hansford 

and Thaler’s motion; the writ will issue only if Respondent fails to do so.

II. Factual and Procedural Background

Hansford and Thaler filed the motion at issue here after this court affirmed 

the dismissal of all but Doug Dretke from Leachman’s pro se civil suit. See 

Leachman v. Dretke, 261 S.W.3d 297, 316 (Tex. App.—Fort Worth 2008, no pet.) 

(op. on reh’g). We reversed and remanded the dismissal with prejudice of Dretke

to the trial court to allow Leachman a reasonable opportunity to amend his 

pleadings. See id. at 303, 305–06. In our analysis of his claim against Dretke, 

we stated:

Leachman did not clearly demarcate his claim for injunctive 

relief against Dretke as separate and apart from his claim for actual 

damages, although he did make such a distinction with regard to his 

request for exemplary damages against Adams, Boyle, Johnson, 

and Oncken. Therefore, from his amended petition, the trial court 

could have reasonably concluded that Leachman had failed to state 

a claim with an arguable basis in law because it appeared that he 

was seeking damages against someone who, in his official capacity, 

could not be held liable under [42 U.S.C.A] § 1983 [(West 2010)].

Furthermore, Leachman clearly alleged that Milbern’s act of 

seizing his property was a due process violation, but it is unclear 

from his amended petition which constitutional rights he alleges that 

the DRC and Dretke violated, and whether he is attacking the initial 

deprivation, the policy behind the deprivation, the DRC’s review 

procedure, or the DRC’s decision to uphold the deprivation. He 

merely states that, by ―allowing‖ and ―upholding‖ Milbern’s seizure, 

Dretke, through the DRC, violated Leachman’s ―rights under the U.S. 

Constitution and the Constitution of Texas.‖

Based on the ambiguities presented by Leachman in his claim 

against Dretke, we cannot say that the trial court abused its 

discretion by dismissing his claim for having no arguable basis in 
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law.[] Whether the trial court abused its discretion by dismissing 

Leachman’s claims with prejudice depends on whether Leachman’s 

errors could be remedied. Because Leachman could have amended 

his pleadings to clarify the ambiguities in his claim against Dretke, 

dismissal with prejudice was an abuse of discretion. Therefore, we 

overrule Leachman’s third issue, but we sustain the portion of 

Leachman’s first issue regarding the dismissal with prejudice of his 

claim against Dretke.

Id. at 305–06 (citations omitted). In the conclusion of our opinion, we stated, 

We reverse the trial court’s dismissal with prejudice as to 

Leachman’s claim against Dretke and remand the case to afford 

Leachman a reasonable opportunity to amend his pleadings as to 

that claim only. Having overruled the remainder of Leachman’s four 

points, we affirm the rest of the trial court’s judgment.

Id. at 316.

This court’s mandate issued on September 18, 2008. In our mandate, we 

stated, in pertinent part,

This court has again considered the record on appeal in this case 

and holds that there was error in part of the trial court’s judgment. It 

is ordered that the judgment of the trial court is affirmed in part and 

reversed and remanded in part. We affirm that portion of the trial 

court’s judgment as to Leachman’s claims against Glenda J. Adams, 

Joseph C. Boyle, Deborah A. Johnson, and Denise Oncken. We 

reverse that portion of the trial court’s judgment with regard to the 

dismissal with prejudice of Leachman’s claims against Doug Dretke 

and remand the case to provide Leachman with a reasonable 

opportunity to amend his pleadings as to that claim only.

Upon remand, Thaler and Hansford filed their motion, arguing that 

Leachman had filed amended pleadings substituting Thaler in his official capacity 

as the new Director of the Texas Department of Criminal Justice, Correctional 

Institutions Division (TDCJ-CID) for Dretke, the old director, and adding Hansford 

in her individual and official capacities, as TDCJ-CID’s Allred Unit’s mail room 
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supervisor. They moved to dismiss all of the claims against Hansford, arguing 

that Relator was trying to expand his suit beyond our mandate by adding 

Hansford as a new party and also by adding new claims. They asked 

Respondent to dismiss Hansford and to strike Leachman’s new claim alleging the 

unconstitutionality of the TDCJ policy BP-0.391, which prevents Leachman from 

contacting his victims.

In his response to the motion, Leachman argued that there was ―absolutely 

no basis under Texas law for partial dismissal or for striking,‖ strenuously 

disagreeing with Hansford and Thaler’s characterization of our mandate and 

pointing out that it should be read within the context of the entire opinion. 

Leachman stated,

The Court of Appeals was emphasizing that all other 

defendants and claims were dismissed; it was not saying the case 

was forever limited to claims against the Director . . . by recognizing 

the validity of the claim, holding that its dismissal was improper, and 

remanding it to this Court, the Court of Appeals simply returned the 

claim to its prior status and allowed Plaintiff to proceed with it.

Respondent issued a letter in which he concluded that our mandate was 

clear and unambiguous and that Leachman violated our mandate by filing an 

amendment naming Hansford as a new party and by adding a new claim. 

Respondent issued an order incorporating this information on the same day, 

stating, in pertinent part:

It is hereby ORDERED, ADJUDGED and DECREED that said 

Motions be, and they are hereby GRANTED, and Plaintiff’s cause of 

action against Defendant, Kerri L. Hansford, is DISMISSED, and the 

Court further ORDERS that all claims by Plaintiff alleging the 
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unconstitutionality of [BP-0.391] and Section 38.111 of the TEXAS 

PENAL CODE are DISMISSED, all costs of court are assessed 

against Plaintiff.

III. Discussion

Leachman argues in his petition for writ of mandamus that Respondent 

read our mandate too narrowly and complains that ―it was plainly inappropriate to 

dismiss claims against Hansford[] or strike claims against Thaler, based on the 

mandate, and mandamus is the proper remedy when the trial court ignores the 

mandate.‖ The Attorney General’s office responded on behalf of Thaler and 

Hansford and contends that Respondent did not err in his interpretation of our 

mandate.

Generally, mandamus relief is appropriate only when there has been a 

clear abuse of discretion by the trial court and there is no adequate remedy on 

appeal. In re State, No. 10-0235, 2011 WL 3796616, at *2 (Tex. Aug. 26, 2011)

(orig. proceeding). However, a writ of mandamus ―will issue to compel 

compliance with the mandate of the Court of Appeals.‖ Schliemann v. Garcia, 

685 S.W.2d 690, 692 (Tex. App.—San Antonio 1984, orig. proceeding).

We have previously stated that when an appellate court remands a case 

with specific instructions, the trial court is limited to complying with the 

instructions and cannot relitigate issues controverted at the former trial and that 

its authority is limited to only those issues specified in the mandate. Denton 

Cnty. v. Tarrant Cnty., 139 S.W.3d 22, 23 (Tex. App.—Fort Worth 2004, pet. 

denied). However, ―[i]n interpreting the mandate of an appellate court, the trial 
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court looks not only to the mandate itself but also to the appellate court’s 

opinion,‖ and the trial court is given a reasonable amount of discretion in 

complying with the mandate. Id. (emphasis added). A trial court’s failure to 

comply with a court of appeals mandate is an abuse of discretion, and 

mandamus will issue to ensure compliance with the court’s judgment. See Lee v. 

Downey, 842 S.W.2d 646, 648 (Tex. 1992) (orig. proceeding).

Here, in our opinion in Leachman, we stated that we sustained the portion 

of Leachman’s first issue regarding the dismissal with prejudice of his claim 

against Dretke and in the conclusion of the opinion, we stated that we reversed 

the dismissal with prejudice ―as to that claim only‖; however, the opinion provided 

the context of the parties sued by Leachman and the claims that Leachman had 

brought. See Leachman, 261 S.W.3d at 306, 316; cf. Madeksho v. Abraham, 

Watkins, Nichols, & Friend, 112 S.W.3d 679, 690–91 (Tex. App.—Houston [14th 

Dist.] 2003, pet. denied) (op. on reh’g) (stating that while in a perfect world 

appellate mandates would settle all questions and end all disputes, when they do 

not, trial judges must do the best they can to interpret the mandate and to follow 

it).

Leachman’s suit is a civil suit. Under rule of civil procedure 63, parties 

may amend their pleadings ―as they may desire by filing such pleas with the clerk 

at such time as not to operate as a surprise to the opposite party,‖ as long as the 
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amendments occur prior to seven days before the date of trial.2 Tex. R. Civ. P. 

63; see City of Dallas v. Turley, 316 S.W.3d 762, 771 n.6 (Tex. App.—Dallas 

2010, pet. denied) (stating that because the appellate court was remanding the 

cause to the trial court to reconsider claims not addressed in the plea to the 

jurisdiction, the landowners would have the opportunity to seek to join additional 

parties or amend their pleadings as the rules may allow, citing rules of civil 

procedure 39–41, 63). And under rule of civil procedure 37, additional parties 

may be brought as long as it does not unreasonably delay the trial of the case. 

See Tex. R. Civ. P. 37; see also Tex. R. Civ. P. 39–40. Misjoinder of parties is 

not a ground for dismissal of an action. See Tex. R. Civ. P. 41.

Because, within the context of the opinion, this court’s mandate did not 

expressly preclude Leachman from including additional claims or parties in the 

suit under the rules of civil procedure, we conclude that Respondent abused his

discretion by granting Hansford and Thaler’s motion. See Reynolds v. Murphy, 

266 S.W.3d 141, 143 (Tex. App.—Fort Worth 2008, pet. denied) (stating that this 

court’s opinion and mandate in the prior appeal did not preclude appellant from

freely amending his pleadings under rule of civil procedure 63); see also Simulis, 

L.L.C. v. Gen. Elec. Capital Corp., No. 14-09-01055-CV, 2011 WL 505334, at *3–

4 (Tex. App.—Houston [14th Dist.] Feb. 15, 2011, pet. filed) (concluding that on 

remand, Simulis was entitled to amend its pleadings to add new claims or parties 

 

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There is no indication that a trial date has been set in Leachman’s case.
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except as to the claim upon which summary judgment was rendered in General 

Electric’s favor when the opinion and mandate made clear that more than one 

claim was considered).

IV. Conclusion

Because we may issue mandamus to enforce compliance by the trial court 

with our mandate, we conditionally grant Leachman’s petition for writ of 

mandamus and direct Respondent to vacate his order granting Hansford and 

Thaler’s motion; the writ will issue only if Respondent fails to do so. See Tex. R. 

App. P. 51.1; Lee, 842 S.W.2d at 648; In re Castle Tex. Prod. Ltd. P’ship, 157 

S.W.3d 524, 527 (Tex. App.—Tyler 2005, orig. proceeding); see also 

Schliemann, 685 S.W.2d at 692.

BOB MCCOY

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: November 10, 2011