in Re Juan Trevino

• Court: Court of Appeals of Texas
• Decided: October 8, 2008
• Docket: 04-08-00609-CV
• Status: Published

Opinion

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MEMORANDUM OPINION

No. 04-08-00609-CV

IN RE JUAN TREVINO

Original Mandamus Proceeding1

PER CURIAM

Sitting: Catherine Stone, Justice Sandee Bryan Marion, Justice Steven C. Hilbig, Justice

Delivered and Filed: October 8, 2008

PETITION FOR WRIT OF MANDAMUS DENIED

In this original mandamus proceeding, relator Juan Trevino complains of one oral pretrial

order and two written pretrial orders signed by the Honorable Larry Noll, presiding judge of the

408th Judicial District Court, Bexar County, Texas: (1) an order setting aside the consolidation of

two competing adoptions; (2) an oral order abating relator’s adoption proceeding; and (3) an order

granting monetary sanctions in the form of attorneys’ fees.

To be entitled to mandamus relief, a relator must show the trial court clearly abused its

discretion and the relator has no adequate remedy at law. In re Prudential, 148 S.W.3d 124, 135

(Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). In 2006, the Texas Supreme

1 … This proceeding arises out of Cause No. 2008-PA-00956, pending in the 37th Judicial District Court, Bexar County, Texas, the Honorable David A. Berchelmann presiding. However, the challenged order was signed by the Honorable Larry Noll, presiding judge of the 408th Judicial District Court, Bexar County, Texas. 04-08-00609-CV

Court held that, “[a]lthough we have recognized that the standard’s ‘operative word, ‘adequate’, has

no comprehensive definition’ and demands a ‘careful balance of jurisprudential considerations that

determine when appellate courts will use original mandamus proceedings to review the actions of

the lower courts,’ mandamus will not issue when the law provides another plain, adequate, and

complete remedy.” In re Tex. Dep’t of Family and Protective Servs., 210 S.W.3d 609, 613 (Tex.

2006) (quoting In re Prudential, 148 S.W.3d at 135-36).

The Texas Rules of Civil Procedure provide that “[a]ny party may intervene, subject to being

stricken out by the court for sufficient cause on the motion of the opposite party . . . .” See TEX . R.

CIV . P. 60. Relator is able to file a petition in intervention in order to join the adoption proceeding

filed by real party in interest, Yolanda Zamarripa. Relator is not required to get the court’s

permission to intervene. See id. Therefore, under the facts of this case, we conclude that a petition

in intervention is an adequate remedy at law.

Furthermore, relator complains of the trial court’s imposition of sanctions against relator’s

counsel, under Texas Rule of Civil Procedure 13, which awarded $675 in attorneys’ fees to Yolanda

Zamarripa.2 Generally, when a trial court imposes monetary sanctions, that party has an adequate

remedy by appeal. See Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex. 1986) (per

curiam); City of Houston v. Chambers, 899 S.W.2d 306, 308 (Tex. App.—Houston [14th Dist.]

1995, orig. proceeding). The two exceptions to this general rule are inapplicable to this case. See

Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991) (holding that a remedy by appeal is inadequate

when the monetary sanctions threaten the party’s willingness or ability to continue the litigation);

2 … Relator complains that the sanctions were improperly awarded against his attorney. However, the order granting sanctions is unclear whether the trial court was ordering relator or relator’s counsel to pay the attorneys’ fees. The order states the “Court orders atty [sic] fees in the amount $675.00 awarded to Yolanda Zamarripa. Paid w/i [sic] 30 days to atty [sic] Dennis L. Moreno.” Nonetheless, in their arguments to this court, both parties agree that the trial court ordered relator’s counsel to pay the attorneys’ fees.

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In re White, 227 S.W.3d 234, 236 (Tex. App.—San Antonio 2007, orig. proceeding) (holding that

a remedy by appeal is inadequate when a judge is sanctioned, but is not a party of record in the

underlying suit) (citing Chambers, 899 S.W.2d at 308). Because there is an adequate remedy by

appeal with regard to the sanctions imposed on relator’s counsel, relator is not entitled to mandamus

relief.

Accordingly, the petition for writ of mandamus is denied. Our stay order, entered August

15, 2008, is vacated.

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