Petition for Writ of Mandamus Denied and Memorandum Opinion filed
November 6, 2015.
In The
Fourteenth Court of Appeals
NO. 14-15-00943-CV
IN RE VINCENT FRANZESKOS, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
246th District Court
Harris County, Texas
Trial Court Cause No. 2004-68975
MEMORANDUM OPINION
On November 5, 2015, relator Vincent Franzeskos filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also
Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable
Charley Prine, presiding judge of the 246th District Court of Harris County, to
vacate his denial of and grant relator’s motion for judgment nunc pro tunc of an
order that modified the child possession provisions of a final divorce decree.
Relator has not satisfied his burden to demonstrate his entitlement to the
extraordinary relief of a writ of mandamus. See In re State Bar of Tex., 113 S.W.3d
730, 733 (Tex. 2003) (orig. proceeding) (“‘Mandamus issues only to correct a clear
abuse of discretion or the violation of a duty imposed by law when there is no
other adequate remedy by law.’” (quoting Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding)) (emphasis added). Relator may file a motion to
modify the possession order. See Tex. Fam. Code Ann. § 156.101. Thus, he has an
adequate remedy at law. See In re Hernandez, 14-13-01038-CV, 2014 WL
6854621, at *1 (Tex. App.—Houston [14th Dist.] Dec. 4, 2014, orig. proceeding).
Additionally, the record for a petition for writ of mandamus must contain
either a written order from the trial court or a reporter’s record of the trial court’s
oral order denying a motion for relief. See In re Bill Heard Chevrolet, Ltd., 209
S.W.3d 311, 316 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). In this
case, relator has not provided either a written order or a reporter’s record showing
that the trial court denied his motion for judgment nunc pro tunc. Relator has only
provided an affidavit of his attorney that the trial court denied the motion. An
affidavit may not serve as a substitute for the official record. See In re Whitney, 14-
13-00999-CV, 2013 WL 6157121, at *1 (Tex. App.—Houston [14th Dist.] Nov.
21, 2013, orig. proceeding) (citing Hamilton v. Empire Gas & Fuel Co., 134 Tex.
377, 384–85, 110 S.W.2d 561, 566 (1937); Res. Health Servs., Inc. v. Acucare
2
Health Strategies, Inc., No. 14–06–00846–CV, 2007 WL 4200587, at *1 (Tex.
App.—Houston [14th Dist.] Nov. 29, 2007, no pet.) (mem. op.).
Accordingly, we deny relator’s petition for writ of mandamus because: (1)
he has an adequate remedy at law, and (2) he has not provided this court with an
adequate record.
Relator also filed a motion for emergency stay. Because we deny the
petition, we also deny the motion for emergency stay.
PER CURIAM
Panel consists of Justices Boyce, Busby, and Brown.
3
in Re Vincent Franzeskos
Combined Opinion