Thirteenth Court of Appeals

If you plan to file an original proceeding, you must demonstrate compliance with Texas Rule of Appellate Procedure 52. The following is a worksheet that may be used to help ensure that documents filed in an original proceeding comply with the appellate rules. See generally Tex. R. App. P. 9, 52. The court appreciates advance notification of filings seeking emergency relief.

Procedure

Number of Copies. If a petition or response is not e-filed, file the original with the clerk. Id. R. 9.2(c), 9.3.

Format. The petition must comply with the general requirements for appellate filings. Id. R. 9.

Required Form and Contents. The petition must contain specified information with headings: identity of parties and counsel, table of contents, index of authorities, statement of the case, statement of jurisdiction, issues presented, statement of facts, argument, prayer, and certification. Id. R. 52.3.

Certification. The person filing the petition must certify that every factual statement in the petition is supported by competent evidence included in the appendix or record. Id. R. 52.3.

Appendix. The petition must include an appendix containing: (1) a certified or sworn copy of any order complained of, or any other document showing the matter complained of, and (2) unless voluminous or impracticable, the text of any rule, regulation, ordinance, statute or constitutional provision on which the argument is based. Id. R. 52.3(k)(1). If the petition is for a writ of habeas corpus, the appendix must include proof of restraint. Id. R. 52.3(k)(1)(D).

Record. A record must be filed with the petition and must contain: (1) certified or sworn copies of every document that is material to the claim for relief and that was filed in any underlying proceeding, and (2) a court reporter’s record of any relevant testimony from any underlying proceeding or a statement that no testimony was adduced in connection with the matter complained of. Id. R. 52.7(a).

Bookmarks. An electronically filed record or appendix that contains more than one item must contain bookmarks to assist in locating each item. Id. R. 9.4(h). A paper record must be tabbed and indexed.

Emergency Relief

Petition. The petition itself must be filed before the court can grant temporary relief. See In re Ramirez, 133 S.W.3d 664, 664-65 (Tex. App.—Corpus Christi 2003, orig. proceeding).

Service. When seeking emergency relief, the relator must notify or make a diligent effort to notify all parties by "expedited means," such as telephone, facsimile, or email, that a motion for temporary relief has been filed. Id. R. 52.10(a). The relator must file a "certificate of compliance" verifying service or attempted service in this manner. Id.

Sua sponte. The court can grant "any just relief" pending the court's action on the petition on motion or on its own initiative. Id. R. 52.10(b).

Bond. The court can require a bond as a condition of granting temporary relief. Id.

Substance

Civil Standard of Review. In a civil case, the relator must show that the trial court abused its discretion and that there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding); 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). In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding).

Criminal Standard of Review. To be entitled to mandamus relief in a criminal case, the relator must show that there is no adequate remedy at law and that what the relator seeks to compel is a ministerial act. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). ). If the relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of App. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). A remedy at law, though it technically exists, "may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate." Greenwell v. Ct. of App. for the Thirteenth Jud. Dist., 159 S.W.3d 645, 648–49 (Tex. Crim. App. 2005) (orig. proceeding).

Timeliness. The court can deny relief on grounds that the relator waited too long before filing the petition, even if opposing party does not assert lack of diligence as ground for denying relief. In re Users Sys. Servs., Inc., 22 S.W.3d 331, 337 (Tex. 1999) (orig. proceeding); see eg., Rivercenter Asocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding).

Factual disputes. If there are factual disputes, relief by mandamus is not appropriate. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990) (orig. proceeding). The relator must show it has a clear legal right to the performance of a certain act. Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996) (orig. proceeding). If the facts on which legal right depends are doubtful or disputed, mandamus won't issue. Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995) (orig. proceeding).

Justiciable interest. The relator must show a justiciable interest in the underlying controversy. Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (orig. proceeding). However, you do not necessarily have to be a party to the underlying litigation to seek relief. Id.

Demand and refusal. Mandamus is not available to compel an action that has not first been demanded and refused. In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding). This requirement can be excused if the request would be futile. Terrazas, 829 S.W.2d at 723.