In Re FC Apollo Towing, LLC v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 7, 2024
• Docket: 13-24-00213-CV
• Status: Published

Opinion

NUMBER 13-24-00213-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE FC APOLLO TOWING, LLC

ON PETITION FOR WRIT OF MANDAMUS

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Peña Memorandum Opinion by Chief Justice Contreras1

On April 25, 2024, relator FC Apollo Towing, LLC filed a petition for writ of

mandamus asserting that the trial court erred by: (1) granting motions for continuance;

(2) denying a no-evidence motion for summary judgment; (3) failing to grant a motion to

dismiss for lack of subject matter jurisdiction; and (4) failing or refusing to rule on a motion

for judicial notice of adjudicative facts.

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. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). Mandamus is an extraordinary and discretionary remedy. See In re Walker, 683

S.W.3d 400, 402 (Tex. 2024) (orig. proceeding) (per curiam); In re Garza, 544 S.W.3d

836, 840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial

court abused its discretion, and (2) the relator lacks an adequate remedy by appeal. In re

USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re

Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,

839–40 (Tex. 1992) (orig. proceeding). However, if a trial court issues an order “beyond

its jurisdiction,” mandamus relief is appropriate because such an order is void ab initio. In

re Panchakarla, 602 S.W.3d 536, 539 (Tex. 2020) (orig. proceeding) (per curiam) (quoting

In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam));

see In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding).

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

the response filed by real party in interest Highway Barricades & Services, LLC, and the

applicable law, is of the opinion that relator has not met its burden to obtain relief.

Accordingly, we deny the petition for writ of mandamus.

DORI CONTRERAS Chief Justice

Delivered and filed on the 7th day of May, 2024.