In Re Randall Bolivar v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 30, 2025
• Docket: 13-25-00253-CV
• Status: Published

Opinion

NUMBER 13-25-00253-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE RANDALL BOLIVAR

ON PETITION FOR WRIT OF MANDAMUS

MEMORANDUM OPINION

Before Justices Silva, Peña, and Fonseca Memorandum Opinion by Justice Fonseca1

By pro se petition for writ of mandamus, relator Randall Bolivar, an incarcerated

inmate, contends that the trial court2 abused its discretion when it held a hearing on

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not

required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”); id. R. 47.4 (explaining the differences between opinions and memorandum opinions). 2 This original proceeding arises from trial court cause number 2021-DCL-05478 in the 357th

District Court of Cameron County, Texas, and the respondent is the Honorable Juan A. Magallanes. See id. R. 52.2. We note; however, that on May 9, 2025, the Presiding Judge of the Fifth Administrative Judicial Region assigned the Honorable Jose Manuel Bañales to the 357th District Court of Cameron County, Texas, for specified dates, and Judge Bañales has indicated that he may be presiding over other matters in this cause. See id. various motions and issued rulings thereon without providing him with notice and an

opportunity to be heard. We conditionally grant the petition for writ of mandamus.

I. BACKGROUND

The underlying lawsuit, which originated in 2021, concerns the ownership and

control of Bolivar Building and Contracting, LLC (the company), and its assets, including

real estate. In short, Nancy P. Vasquez asserts that she owns and controls the company,

and that Bolivar, his mother Maria S. Rey, and his recently created company, Bolivar

Business Conglomerate, LLC, have improperly claimed ownership over the company and

its assets. Further, Anna I. Aguilar contends that because the company has forfeited its

charter, she “is the current and only record owner of the tradename” of the company.

During the pendency of the lawsuit, Bolivar was generally represented by counsel

and had provided a power of attorney to Rey; however, Bolivar discharged his counsel

and revoked Rey’s power of attorney, and thereafter attempted to proceed pro se. More

specifically, on April 7, 2025, Bolivar filed a “Notice of Change of Service Address” which

stated that he had dismissed his counsel on March 25, 2025; that he had revoked Rey’s

power of attorney; that he was proceeding pro se; and that service of matters pertaining

to the lawsuit should be sent to his address in prison at the McConnell Unit in Beeville,

Texas. Shortly thereafter, Bolivar’s counsel filed a motion to withdraw, which the trial court

granted by order signed on April 17, 2025. The order stated that Bolivar’s “last known

address” was the McConnell Unit in Beeville, Texas, and “that all notices in this case shall

be delivered by U.S. Postal Service” to Bolivar at that address. On April 22, 2025, Bolivar

again notified the trial court that he had revoked Rey’s power of attorney.

On April 23, 2025, the trial court signed an “Order Setting Hearing on all Pending

2 Motions,” which provided that a hearing on all pending motions would be held on April 25,

2025. The order does not include the time that the hearing was to occur and does not

affirmatively reflect that it was served on the parties. The trial court proceeded with the

hearing and issued rulings on the pending motions. According to the transcript of the

hearing, the trial court denied: (1) Bolivar’s motion to dissolve a temporary restraining

order and injunction; (2) Bolivar’s traditional and no evidence motion for summary

judgment; (3) Bolivar’s objection to certain matters that occurred at an April 15, 2025

hearing; (4) Bolivar’s plea to the jurisdiction; (5) Bolivar’s plea in abatement; (6) Bolivar’s

request for a declaratory judgment; and (7) Bolivar’s special exceptions. The trial court’s

docket entry regarding the hearing indicates that the trial court also granted Vasquez and

the company’s motion to allow an expert to appear and provide testimony by Zoom, and

further allowed counsel for Rey to withdraw.

Bolivar thereafter filed this original proceeding and requested temporary relief. We

granted Bolivar’s request for temporary relief, ordered the trial court proceedings to be

stayed, and requested the real parties in interest to file a response to the petition for writ

of mandamus. See TEX. R. APP. P. 52.6, 52.8, 52.10.3 Vasquez and the company filed a

response in opposition to the relief requested, and Bolivar filed a reply thereto. Aguilar

filed a response in support of Bolivar’s petition for writ of mandamus.

II. STANDARD OF REVIEW

Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.

Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,

3 Bolivar named the Texas Secretary of State, Jane Nelson, as a real party in interest in this original

proceeding. See id. Nelson has advised the Court that she does not have an interest in nor does she take a position on the propriety of the relief sought in the petition for writ of mandamus.

3 840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). “Mandamus relief is available if the

relator establishes a clear abuse of discretion for which there is no adequate appellate

remedy.” In re AutoZoners, LLC, 694 S.W.3d 219, 223 (Tex. 2024) (orig. proceeding) (per

curiam); see In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer,

827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). “The relator bears the burden of

proving these two 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.

III. NOTICE AND HEARING

“Notice is ‘[a]n elementary and fundamental requirement of due process.’” B.

Gregg Price, P.C. v. Series 1 – Virage Master LP, 661 S.W.3d 419, 422 (Tex. 2023) (per

curiam) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)).

“The United States Constitution’s Due Process Clause and the Texas Constitution’s Due

Course of Law Clause require adequate procedural due process for parties to a judgment,

including notice of trial court proceedings.” Id. “Such notice must be ‘reasonably

calculated, under all the circumstances, to apprise interested parties of the pendency of

the action and afford them an opportunity to present their objections.’” Id. at 423 (quoting

Mullane, 339 U.S. at 314). The Texas Rules of Civil Procedure incorporate these precepts

regarding hearings and trial settings. See, e.g., TEX. R. CIV. P. 21 (governing filing,

service, and notice of court proceedings), 245 (requiring specific notice of a trial setting

and “reasonable” notice for subsequent trial settings). Further, due process also requires

“an opportunity to be heard at a meaningful time and in a meaningful manner.” Univ. of

Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 930 (Tex. 1995); see In re J.N.M., 672

4 S.W.3d 474, 480 (Tex. App.—San Antonio 2023, pet. denied). “When parties are not

afforded a meaningful opportunity to be heard, ‘the remedy for a denial of due process is

due process.’” B. Gregg Price, P.C., 661 S.W.3d at 423 (quoting Than, 901 S.W.2d at

933).

Moreover, “[i]t is well-established that litigants cannot be denied access to the

courts simply because they are inmates.” In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).

“All litigants forced to settle disputes through the judicial process have a constitutional

right to be heard at a meaningful time in a meaningful manner.” In re L.N.C, 573 S.W.3d

309, 324 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). In this regard, an inmate

does not have an “absolute right” to appear in person in all court proceedings. In re Z.L.T.,

124 S.W.3d at 165. Rather, “the inmate’s right of access to the courts must be weighed

against the protection of our correctional system’s integrity.” Id. “If the trial court

determines that the inmate’s personal appearance is not warranted, then the trial court

should allow the inmate to proceed by affidavit, deposition, telephone, or other effective

means.” In re L.N.C., 573 S.W.3d at 324.

IV. ANALYSIS

By one issue, Bolivar asserts that the trial court erred by proceeding with a hearing

on pending motions and issuing rulings thereon without providing him with notice and an

opportunity to be heard. Vasquez and the company assert, in contrast, that the trial court

did not abuse its discretion because

it formally gave [Bolivar’s] attorney and [Bolivar’s] mother, who had his power of attorney, two days[’] notice of a hearing on [Bolivar’s] numerous motions filed on the eve of trial without providing the [trial court] with orders to set hearings on the motions and [because Bolivar] discharged his attorney also on the eve of trial but failed, along with his attorney, to file a motion with the [trial court] allowing the attorney to withdraw.

5 Vasquez and the company further assert that Bolivar does not have clean hands, as

required to obtain mandamus relief, due to the foregoing conduct, and “because he failed

to provide a contact address other than his prison address which made it difficult for the

court to be able to give [] him timely notice.”

Contrary to the real parties’ assertions, Bolivar was not represented by counsel

and had already revoked his mother’s power of attorney when, on April 23, 2025, the trial

court issued notice of a hearing to be held on “all pending motions” at some unidentified

time during the day of April 25, 2025. The real parties cite no authority for the propositions

that Bolivar’s filing of motions “on the eve of trial,” failure to file proposed orders setting

his motions for hearing, or providing a prison mailing address for service, obviate the

requirement to provide Bolivar with the due process rights to notice and an opportunity to

be heard.

Vasquez and the company further contend that Bolivar’s petition for writ of

mandamus is moot because the trial court: (1) scheduled a new hearing on the motions

for May 21, 2025, at 8:00 a.m.; (2) reset the case for trial to begin on June 2, 2025; and

(3) provided Bolivar with notice of the new hearing and trial dates by mailing notice to

Bolivar at the McConnell Unit. See Abbott v. Mexican Am. Legis. Caucus, Tex. House of

Representatives, 647 S.W.3d 681, 689 (Tex. 2022) (explaining that a case is moot when

there is no justiciable controversy between the parties, the parties lack a legally

cognizable interest in the outcome of the case, or the court’s actions on the merits cannot

affect the parties’ rights or interests); see also In re Contract Freighters, Inc., 646 S.W.3d

810, 813 (Tex. 2022) (orig. proceeding) (per curiam). However, in connection with this

issue, the trial court advised us that it canceled the pretrial hearing set for May 21, 2025.

6 Accordingly, we reject the real parties’ contention that this original proceeding has been

rendered moot.

Here, as acknowledged by the real parties, Bolivar received only two days’ notice

of the April 25, 2025, hearing on the pending motions, and he was never notified of the

time of the hearing. Thus, Bolivar failed to receive the minimum notice required by the

Texas Rules of Civil Procedure in violation of his due process rights and further failed to

receive a meaningful opportunity to be heard regarding the pending motions. See TEX. R.

CIV. P. 21; B. Gregg Price, P.C., 661 S.W.3d at 422; Than, 901 S.W.2d at 933. We sustain

the issue presented by Bolivar in this original proceeding.

V. PENDING MOTIONS

We now address pending motions which we have previously carried with the case

or which were only recently received. First, both Bolivar and Aguilar have filed motions

under Texas Rule of Civil Procedure 12 seeking to compel counsel for the company to

show that it possesses the authority to represent the company in this lawsuit. See TEX.

R. CIV. P. 12. Vasquez and the company have filed a motion to dismiss or strike Bolivar’s

motion and have further filed a substantive response thereto, together with a motion for

leave to file the same. We grant Vasquez and the company’s motion for leave, and we

consider this pleading on its merits. In connection with their motions to show authority,

Bolivar and Aquilar have also filed a joint pleading in which they request that we strike

Vasquez and the company’s response to the petition for writ of mandamus. Based on the

record presented, Bolivar filed a motion to show authority in the trial court, and the trial

court heard that motion on April 25, 2025. The trial court entertained Vasquez and the

company’s response, and Vasquez presented testimony regarding the matter. The trial

7 court ultimately denied Bolivar’s motion to show authority at the hearing. In this original

proceeding, we concluded that the trial court erred in proceeding with the hearing on April

25, 2025, and issuing rulings on the pending motions, including the Rule 12 motion, at

that time. Accordingly, we defer to the trial court to consider this matter, in the first

instance, with proper notice and an opportunity to be heard. We therefore deny Bolivar

and Aguilar’s motions to show authority, and their joint motion to strike Vasquez and the

company’s response to the petition for writ of mandamus, and we likewise deny

Vasquez’s and the company’s motion to dismiss or strike.

Second, Bolivar filed a “Motion for Judicial Referral to the Texas HHSC-OIG for

Civil/Criminal Investigation of Welfare Recipient Fraud.” He requests that an investigation

be conducted regarding “the actual or potential fraud against the State of Texas by

[Vasquez] in applying for and receiving State Welfare Benefits by withholding the total

assets, income, and resources derived from, either legally or illegally, other undisclosed

sources.” This motion lacks any relevance to the issues presented in this petition for writ

of mandamus, and Bolivar makes no showing otherwise. We deny Bolivar’s motion.

Third, and finally, Vasquez and the company filed a motion to lift the stay that we

imposed on the trial court proceedings. Given our resolution of this original proceeding,

we dismiss this motion as moot.

VI. CONCLUSION

By order issued on May 9, 2025, we granted Bolivar’s emergency motion to stay,

and we ordered the trial court proceedings to be stayed pending the resolution of this

original proceeding or further order of the Court. See TEX. R. APP. P. 52.10. We lift the

stay previously imposed in this case. See id. We hold that any actions that may have

8 been improvidently taken in the trial court in this case from May 9, 2025, until the present,

are void. See In re Bates, 429 S.W.3d 47, 53 (Tex. App.—Houston [1st Dist.] 2014, orig.

proceeding) (“Orders issued by a respondent trial court in violation of an appellate court

stay order are void.”); see also In re Helena Chem. Co., 286 S.W.3d 492, 498 (Tex.

App.—Corpus Christi–Edinburg 2009, orig. proceeding); Oryx Capital Int’l, Inc. v. Sage

Apartments, L.L.C., 167 S.W.3d 432, 438 (Tex. App.—San Antonio 2005, no pet.); In re

El Paso Cnty. Comm’rs Ct., 164 S.W.3d 787, 787 (Tex. App.—El Paso 2005, orig.

proceeding) (per curiam).

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

the responses, the additional briefing, and the applicable law, is of the opinion that Bolivar

has met his burden to obtain relief as stated herein. While we appreciate the challenges

presented in this case by the fact that Bolivar discharged his counsel and is proceeding

pro se as an incarcerated inmate, and we are cognizant that this case should be resolved

without further delay, we nevertheless are constrained to hold that Bolivar is entitled to

the due process requirements of notice and an opportunity to be heard. However, we

caution Bolivar to remain mindful that courts are required to hold pro se litigants to the

same standards as licensed attorneys; and pro se litigants must comply with all applicable

laws and rules of procedure. See Zhao v. Sea Rock Inc., 659 S.W.3d 119, 128 (Tex.

App.—El Paso 2022, pet. denied); Manning v. Johnson, 642 S.W.3d 871, 884 (Tex.

App.—Texarkana 2021, no pet.).

We conditionally grant the petition for writ of mandamus, and we direct the trial

court to vacate the rulings that were rendered on April 25, 2025, without notice and an

opportunity to be heard. We further direct the trial court to provide Bolivar with due

9 process in the future, including all trial court proceedings and the trial of this case, by

providing him with appropriate and effective notice and a meaningful opportunity to be

heard. Our writ will issue only if the trial court fails to promptly comply.

YSMAEL D. FONSECA Justice

Delivered and filed on the 30th day of May, 2025.