In Re: R. Stephen Polley v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 8, 2024
• Docket: 05-24-00238-CV
• Status: Published

Opinion

DENY and Opinion Filed March 8, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00238-CV

IN RE R. STEPHEN POLLEY, Relator

Original Proceeding from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-13077

MEMORANDUM OPINION Before Justices Partida-Kipness, Nowell, and Miskel Opinion by Justice Nowell On the Court’s own motion, we withdraw our memorandum opinion and

vacate our order dated March 6, 2024, and we issue this new memorandum opinion

and order in their stead. The following is now the opinion of the Court.

Before the Court are relator’s March 4, 2024 petition for writ of mandamus

and motion for temporary relief. In his petition, relator seeks mandamus relief from

the trial court’s February 26, 2024 order (1) declining to allow relator to supersede

the injunctive relief included in the final judgment and (2) requiring real party in

interest to post security instead. Entitlement to mandamus relief requires relator to demonstrate that the trial

court clearly abused its discretion and that he lacks an adequate remedy by appeal.

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

proceeding). After reviewing the petition and the record, we conclude that relator’s

remedy was to file a motion under Texas Rule of Appellate Procedure 24.4. See TEX.

R. APP. P. 24.4(a)(4) (providing that a party may, by motion filed in the appellate

court, seek review of a trial court’s exercise of discretion under Rule 24.2(a)(3)).

Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.

52.8(a); see also In re Bittinger, No. 14-10-00697-CV, 2010 WL 3310208, at *1

(Tex. App.—Houston [14th Dist.] Aug. 23, 2010, orig. proceeding) (mem. op.)

(denying mandamus petition because relator’s remedy was to file Rule 24.4 motion

in the pending appeal). Having denied the petition, we also deny as moot the motion

for temporary relief.

240238f.p05 /Erin A. Nowell// ERIN A. NOWELL JUSTICE

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