In Re Ruth Bogard v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 1, 2024
• Docket: 13-24-00464-CV
• Status: Published

Opinion

NUMBER 13-24-00464-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE RUTH BOGARD

ON PETITION FOR WRIT OF MANDAMUS

MEMORANDUM OPINION

Before Justices Longoria, Tijerina, and Peña Memorandum Opinion by Justice Longoria1

By petition for writ of mandamus, relator Ruth Bogard asserts that the trial court

erred by refusing to set aside a “default judgment” in a probate proceeding, thereby

rendering the trial court’s subsequent actions void, and that the trial court further erred by

refusing to allow her application for probate of a 2016 will to proceed concurrently with an

application for probate of a 2012 will.

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). 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,

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

S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial

court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re

USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); 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). Alternatively, when a trial court issues an order

“beyond its jurisdiction,” mandamus relief is appropriate because its order is void ab initio.

In re Panchakarla, 602 S.W.3d 536, 539 (Tex. 2020) (orig. proceeding) (per curiam)

(quoting In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per

curiam)).

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

the response filed by real party in interest Sylvia Trevino, and the applicable law, is of the

opinion that the relator has not met her burden to obtain relief. Accordingly, we lift the stay

previously imposed in this case. See TEX. R. APP. P. 52.10 (“Unless vacated or modified,

an order granting temporary relief is effective until the case is finally decided.”). We deny

the petition for writ of mandamus.

NORA LONGORIA Justice

Delivered and filed on the 1st day of November, 2024.