In Re S.B. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 17, 2023
• Docket: 02-23-00390-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00390-CV ___________________________

IN RE S.B.

On Appeal from the 367th District Court Denton County, Texas Trial Court No. 20-7148-367

Before Kerr, Birdwell, and Womack, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

Relator filed an emergency motion to stay certain proceedings in the trial court.

See Tex. R. App. P. 52.10. Relator did not file a petition seeking extraordinary relief, see

Tex. R. App. P. 52.1, although she claims in the motion that she will file a petition for

mandamus later. An appellate court cannot grant temporary relief under rule 52.10

unless an original proceeding has been filed. In re Omni Hotels Mgmt. Corp., No. 2-03-

365-CV, 2003 WL 22966229, at *1 (Tex. App.—Fort Worth Dec. 18, 2003, orig.

proceeding) (per curiam); In re Ramirez, 133 S.W.3d 664 (Tex. App.—Corpus Christi–

Edinburg 2003, orig. proceeding); In re Kelleher, 999 S.W.2d 51, 52 (Tex. App.—

Amarillo 1999, orig. proceeding); see Tex. R. App. P. 52.1, 52.10. Rule 52.10 implies

that a petition must be filed before our court can grant emergency relief. Omni Hotels

Mgmt. Corp., 2003 WL 22966229, at *1. At this point, there is no controversy before

this court. See id.

Accordingly, we dismiss Relator’s emergency motion for want of jurisdiction

without prejudice to refiling it after an original proceeding is commenced. See id.

/s/ Elizabeth Kerr Elizabeth Kerr Justice

Delivered: October 17, 2023