in Re: Marilyn S. Johnson

Opinion

Becker v. State

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: MARILYN S. JOHNSON,                              Relator.	§	No. 08-07-00009-CV AN ORIGINAL PROCEEDING IN MANDAMUS

MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS

            Relator, Marilyn S. Johnson, seeks a writ of mandamus against the Honorable Eduardo A. Gamboa, El Paso County Associate Judge, and the Honorable Max Higgs, Judge of the El Paso County Probate Court. Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)(orig. proceeding). Moreover, there must be no other adequate remedy at law. Id. Although mandamus is not an equitable remedy, it is largely governed by equitable principles. Rivercenter Associates v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993). One such principle is that equity aids the diligent and not those who slumber on their rights. Id.

            Relator seeks to challenge an order appointing a temporary guardian entered by Judge Higgs on June 7, 2006, and an order denying a request for a jury trial entered by Judge Gamboa on September 12, 2006. Relator does not provide any explanation for her delaying in seeking

mandamus relief. We conclude that mandamus relief must be denied because of laches. See Furr’s Supermarkets, Inc. v. Mulanax, 897 S.W.2d 442, 443 (Tex.App.--El Paso 1995, orig. proceeding).

                                                                        KENNETH R. CARR, Justice

January 25, 2007

Before Chew, C.J., McClure, and Carr, JJ.