NUMBER 13-15-00328-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE H.T.M.T., A MINOR
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion Per Curiam1
Relators, Phung Thi Bach Tran, Tien Thi Pham, and Khuong Nguyen, filed a
petition for writ of mandamus on July 17, 2015, seeking to compel the trial court to vacate
the “Order for Temporary Guardianship of the Person Pending Contest” and the “Order
for Possession and Visitation.” Through this original proceeding, relators contend that
the County Court at Law No. One of Victoria County, Texas, lacks jurisdiction over
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).
guardianship proceedings pertaining to the minor child, H.T.M.T., because a suit affecting
the parent-child relationship had been previously filed in the 267th District Court of Victoria
County, Texas. The Court requested and received responses to the petition for writ of
mandamus from the real party in interest, contestant Donna Scott, attorney ad litem
Rodney Durham, guardian ad litem Pamela Orsak, and temporary guardian Diane Kliem.
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, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003)
(orig. proceeding). Alternatively, the supreme court has held that void orders can be
challenged by mandamus, regardless of whether an adequate appellate remedy is
available. See Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973) (orig. proceeding).
An order is void only if the court rendering it had no jurisdiction of the parties, no
jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to
act as a court. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). When a
court's action is merely contrary to a statute or rule, the action is erroneous or voidable,
rather than void. See id.; accord Glunz v. Hernandez, 908 S.W.2d 253, 255 (Tex. App.—
San Antonio 1995, writ denied). Although mandamus is not an equitable remedy, its
issuance is controlled largely by equitable principles. See In re Int'l Profit Assocs., Inc.,
214 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding); In re Users Sys. Servs., Inc., 22
S.W.3d 331, 337 (Tex. 1999) (orig. proceeding); Rivercenter Assocs. v. Rivera, 858
S.W.2d 366, 367 (Tex. 1993) (orig. proceeding).
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The Court, having examined and fully considered the petition for writ of mandamus,
the responses, and the applicable law, is of the opinion that relators have not met their
burden to obtain mandamus relief. Accordingly, we LIFT the stay previously imposed and
we DENY the petition for writ of mandamus. See TEX. R. APP. P. 52.8(a).
PER CURIAM
Delivered and filed the
1st day of September, 2015.
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