In Re: Jose Luis Palomo v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 11, 2023
• Docket: 05-23-01245-CV
• Status: Published

Opinion

DENIED and Opinion Filed December 11, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-01245-CV

IN RE JOSE LUIS PALOMO, Relator

Original Proceeding from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-16-01491

MEMORANDUM OPINION Before Justices Pedersen, III, Nowell, and Miskel Opinion by Justice Pedersen, III Before the Court are relator’s December 8, 2023 petition for writ of

mandamus and motion for emergency relief pending a ruling on relator’s petition for

writ of mandamus. Relator challenges an associate judge’s November 20, 2023 order

denying relator’s 50 U.S.C.A. § 3932 stay reapplication and purported setting a

hearing on temporary orders to take place on December 12, 2023.

Entitlement to mandamus relief requires relator to show that the trial court

clearly abused its discretion and that relator lacks an adequate appellate remedy. In

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

proceeding). Relator bears the burden of providing the Court with a record sufficient to show he is entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992)

(orig. proceeding). A relator must file with his petition (1) “a certified or sworn copy

of every document that is material to the relator’s claim for relief and that was filed

in any underlying proceeding” and (2) “a properly authenticated transcript of any

relevant testimony from any underlying proceeding, including any exhibits offered

into evidence, or a statement that no testimony was adduced in connection with the

matter complained.” TEX. R. APP. P. 52.7(a). The record reflects that on

September 18, 2023, relator filed a stay reapplication with exhibits and that on

November 8, 2023, real party in interest filed an objection to relator’s stay

reapplication. Relator includes in his record a copy of only his November 16, 2023

amended reapplication. The record further reflects that the trial court held a hearing

on relator’s stay reapplication on November 20, 2023, but relator provided neither a

transcript of any testimony adduced at that hearing nor the statement required by

rule 52.7(a)(2). Accordingly, we conclude relator failed to meet his burden to

provide a record sufficient to demonstrate entitlement to mandamus relief.

Even if we were to consider only the petition and record before us, we would

conclude that relator has failed to demonstrate entitlement to mandamus relief. See

TEX. R. APP. P. 52.8(a).

–2– We deny relator’s petition for writ of mandamus. We also deny relator’s

emergency motion as moot.

231245f.p05 /Bill Pedersen, III// BILL PEDERSEN, III JUSTICE

–3–