in Re Eduardo Medrano

• Court: Court of Appeals of Texas
• Decided: March 23, 2012
• Docket: 13-12-00190-CV
• Status: Published

Opinion

NUMBER 13-12-00190-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE EDUARDO MEDRANO

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez & Garza Per Curiam Memorandum Opinion1

Relator, Eduardo Medrano, filed a petition for writ of mandamus and a motion for

temporary relief in this cause on March 22, 2012. Through this original proceeding,

relator seeks to compel the trial court to transfer venue of the underlying modification suit

to Travis County. See TEX. FAM. CODE ANN. § 155.201(b) (West 2008) (“If a suit to

modify or a motion to enforce an order is filed in the court having continuing, exclusive

jurisdiction of a suit, on the timely motion of a party the court shall, within the time required

by Section 155.204, transfer the proceeding to another county in this state if the child has

1 See TEX. R. APP. P. 52.8(d) (AWhen 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). resided in the other county for six months or longer.”).

Relator filed his motion to transfer venue on January 23, 2012. The real party in

interest, Elisheba Marie Casey, thereafter filed a motion for leave to file a controverting

affidavit regarding venue, and that motion has been set for hearing before the trial court

on March 27, 2012. Relator subsequently requested the trial court to transfer the suit

without holding a hearing on the pertinent motions. By motion for temporary relief,

relator seeks to stay the hearing set for March 27, 2012 because that “issue and hearing

is the basis for the relator’s petition for writ of mandamus.”

Mandamus will not issue unless (1) the relator has made a demand on the

respondent, and (2) the respondent has denied relief or otherwise refused to act. 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); Axelson, Inc. v. McIlhany, 798 S.W.2d

550, 556 (Tex. 1990) (orig. proceeding). An exception to this Ademand and refusal@

requirement arises if demand would be futile. See In re Perritt, 992 S.W.2d at 446;

Terrazas, 829 S.W.2d at 723.

Based on the record herein, neither relator=s motion to transfer venue nor the real

party’s motion for leave to file a controverting affidavit have been heard by the trial court,

the trial court has not yet ruled on the motion to transfer venue, and it does not appear that

the submission of this issue to the trial court will be futile. See In re Perritt, 992 S.W.2d at

446; Terrazas, 829 S.W.2d at 723. In short, the issue is premature because the trial

court has not yet ruled on relator=s motion to transfer venue. See In re Hearn, 137

S.W.3d 681, 686 (Tex. App.—San Antonio 2004, orig. proceeding) (denying petition for

writ of mandamus seeking to compel the trial court to transfer venue).

2 The Court, having examined and fully considered the petition for writ of

mandamus, is of the opinion that relator has not shown himself entitled to the relief

sought. The petition for writ of mandamus is DENIED without prejudice. See TEX. R.

APP. P. 52.8(a). The motion for temporary relief is DENIED.

PER CURIAM

Delivered and filed the 23rd day of March, 2012.