NUMBER 13-13-00553-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE SUMMER BACAK
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Perkes, and Longoria
Per Curiam Memorandum Opinion1
Relator, Summer Bacak, filed a petition for writ of mandamus and a motion for
emergency relief in the above cause on October 18, 2013. Through this original
proceeding, relator contends that the trial court erred in rendering a temporary order
granting visitation for relator’s minor children to the alleged biological father of the
children without holding an evidentiary hearing and basing its order on “the papers on
file in this case and the arguments of the attorneys.”
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See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
To be entitled to the extraordinary relief of a writ of mandamus, the relator must
show that the trial court abused its discretion and that there is no adequate remedy by
appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). The relator has the burden of establishing both prerequisites to
mandamus relief. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.
proceeding). This burden is a heavy one. See In re Epic Holdings, Inc., 985 S.W.2d 41
(Tex. 1998) (orig. proceeding). Because a trial court's temporary orders are not
appealable, mandamus is an appropriate means to challenge them. See In re Derzapf,
219 S.W.3d 327, 334–35 (Tex. 2007) (orig. proceeding); In re Russell, 321 S.W.3d 846,
853 (Tex. App.—Fort Worth 2010, orig. proceeding [mand. denied]).
It is the relator’s burden to properly request and show entitlement to mandamus
relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re
Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding). In
addition to other requirements, the relator must include a statement of facts supported
by citations to “competent evidence included in the appendix or record,” and must also
provide “a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the appendix or record.” See generally TEX. R. APP. P.
52.3. The relator must also file an appendix and record sufficient to support the claim
for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the
appendix); id. R. 52.7(a) (specifying the required contents for the record); see also
Walker, 827 S.W.2d at 837.
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As a general rule, mandamus will not issue to compel an action that has not first
been demanded and refused. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig.
proceeding); Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (orig. proceeding).
Further, it is well established that arguments not presented to the trial court will not be
considered in a petition for writ of mandamus. In re Am. Optical Corp., 988 S.W.2d 711,
714 (Tex. 1998) (orig. proceeding). Finally, in determining the propriety of mandamus
relief, appellate courts may not deal with disputed areas of fact. In re Pirelli Tire, L.L.C.,
247 S.W.3d 670, 676 (Tex. 2007) (orig. proceeding); In re Angelini, 186 S.W.3d 558,
560 (Tex. 2006) (orig. proceeding).
The Court, having examined and fully considered the petition for writ of
mandamus and the motion for emergency relief, is of the opinion that relator has not
shown herself entitled to the relief sought under the foregoing standard of review. The
record and appendix presented do not contain any of relator’s pleadings in the
underlying suit. The record further does not contain the reporter’s record of the
underlying hearing, and while the petition for writ of mandamus meets the requirements
of the appellate rules insofar as it states that no testimony was adduced at the hearing,
the order at issue is expressly based on the “arguments of counsel.” Based on the
record presented, we are unable to conclude that the trial court erred in issuing the
temporary order at issue. Accordingly, the petition for writ of mandamus and motion for
emergency relief are DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM
Delivered and filed the
18th day of October, 2013.
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