NUMBER 13-13-00038-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE B.L. AND S.L.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Per Curiam Memorandum Opinion1
Relators, B.L. and S.L., 2 filed a petition for writ of mandamus and a motion for
emergency stay in the above cause on January 28, 2013.3 Through this original
proceeding, relators contend: (1) that temporary orders issued by the trial court should
1
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).
2
Given the nature of this original proceeding as arising from a parental-rights termination and
adoption case, the Court will identify the parties by initials only. See TEX. R. APP. P. 9.8(b).
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Relators filed a “Motion for Leave to File Petition for Writ of Mandamus” with their petition.
Relators’ motion for leave to file their petition for writ of mandamus is dismissed as moot. The Texas
Rules of Appellate Procedure no longer require the relator to file a motion for leave to file an original
proceeding. See generally TEX. R. APP. P. 52 & cmt.
be vacated because the orders are contrary to an agreement reached by the parties;
and (2) the trial court’s failure to appoint an ad litem or amicus attorney for minors
G.L.P.-A., L.A., and M.B.A., was an abuse of discretion. By emergency motion, the
relators seek to stay the temporary orders insofar as the orders grant M.A., the minors’
biological father, the rights contained in a standard possessory order.
To be entitled to the extraordinary relief of a writ of mandamus, the relators 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 relators have 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).
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 examining whether to grant mandamus
relief, the reviewing court does not consider affidavits or other materials that were not
submitted to the trial court. See In re Nabors, 276 S.W.3d 190, 194 n.5 (Tex. App.—
Houston [14th Dist.] 2009, orig. proceeding); cf. Nguyen v. Intertex, Inc., 93 S.W.3d 288,
293 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“The attachment of documents as
exhibits or appendices to briefs is not formal inclusion in the record on appeal and,
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therefore, the documents cannot be considered.”); see also In re Sierra Title of Hidalgo
Co., Nos. 13-10-055-CV & 13-10-099-CV, 2010 Tex. App. LEXIS 1982, at **1-2 (Tex.
App.—Corpus Christi Mar. 18, 2010, orig. proceeding) (mem. op.).
The Court, having examined and fully considered the petition for writ of
mandamus and the motion for emergency stay, is of the opinion that relators have not
shown themselves entitled to the relief sought under the foregoing standard of review.
Accordingly, the petition for writ of mandamus and motion for emergency stay are
DENIED without prejudice. See TEX. R. APP. P. 52.8(a).
PER CURIAM
Delivered and filed the 28th
day of January, 2013.
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