in Re: Jason A. Burkett

• Court: Court of Appeals of Texas
• Decided: October 28, 2020
• Docket: 13-20-00417-CV
• Status: Published

Opinion

NUMBER 13-20-00417-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE JASON A. BURKETT

On appeal from the 430th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Hinojosa, and Tijerina Memorandum Opinion by Justice Hinojosa Relator Jason Burkett filed a petition for writ of mandamus contending that the trial

court failed in its ministerial duty to conduct an evidentiary hearing to determine child

support arrearages in violation of this Court’s mandate in Burkett v. Burkett, No. 13-18-

00385-CV, 2019 WL 3331635, at *13 (Tex. App.—Corpus Christi–Edinburg July 25, 2019,

pet. denied). Real party in interest Zina Michelle Burkett has filed a response to the

petition, and Jason has filed a reply to her response. To obtain relief by writ of mandamus, a relator must establish that the trial court

committed a clear abuse of discretion and that there is no adequate remedy by appeal.

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

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding);

Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). The relator

bears the burden of proving both requirements. In re H.E.B. Grocery Co., 492 S.W.3d

300, 302 (Tex. 2016) (orig. proceeding) (per curiam); Walker, 827 S.W.2d at 840.

A mandate formally commands a lower court to obey a higher court’s judgment. In

re Assurances Generales Banque Nationale, 334 S.W.3d 323, 325 (Tex. App.—Dallas

2010, orig. proceeding). On remand, the trial court’s jurisdiction is limited to the issues

specified in the mandate and the scope of the mandate is determined by referring to both

the appellate opinion and the mandate itself. See Cessna Aircraft Co. v. Aircraft Network,

345 S.W.3d 139, 144 (Tex. App.—Dallas 2011, no pet.). When the appellate court

remands a case with instructions, the trial court is given a reasonable amount of discretion

to comply with the mandate. Russell v. Russell, 478 S.W.3d 36, 42 (Tex. App.—Houston

[14th Dist.] 2015, no pet.). In exercising its discretion, the trial court is authorized to take

all actions that are necessary to give full effect to the appellate court’s judgment and

mandate. Min v. H & S Crane Sales, Inc., 472 S.W.3d 773, 778–79 (Tex. App.—Houston

[14th Dist.] 2015, pet. denied).

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

the response, the reply and the applicable law, concludes that relator has not met his

burden to obtain relief. See id.; Russell, 478 S.W.3d at 42. Accordingly, we DENY the

2 petition for writ of mandamus.

LETICIA HINOJOSA Justice

Delivered and filed the 28th day of October, 2020.