in Re Yasemin Turan ( 2019 )

NUMBER 13-19-00124-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE YASEMIN TURAN
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Memorandum Opinion by Justice Hinojosa 1
By memorandum opinion issued on April 9, 2019, this Court denied the petition for
writ of mandamus in this case. See In re Turan, No. 13-19-00124-CV, 2019 WL 1549395,
at *1 (Tex. App.—Corpus Christi Apr. 9, 2019, orig. proceeding) (mem. op.). Relator
Yasemin Turan has now filed a motion for rehearing en banc, an amended motion for
rehearing en banc, and a motion for leave to file her amended motion. We grant relator’s
motion for leave to file the amended motion for rehearing en banc. We deny the amended
1 See TEX. R. APP. P. 52.8(d) (“When granting relief, the court must hand down an opinion as in
any other case,” but when “denying relief, the court may hand down an opinion but is not required to do
so.”); id. R. 47.4 (distinguishing opinions and memorandum opinions).
motion for rehearing en banc as moot. We withdraw our previous opinion and issue this
opinion in its stead.
Turan filed a petition for writ of mandamus in the above cause on March 25, 2019.
Through this original proceeding, Turan seeks to compel the trial court to vacate its
temporary orders pertaining to grandparent access and visitation and to dismiss the case.
See TEX. FAM. CODE ANN. § 153.433 (West, Westlaw through 2017 1st C.S.).
To obtain relief by writ of mandamus, a relator must establish that the trial court
committed a clear abuse of discretion and that there is no adequate remedy by appeal.
In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding);
Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). The relator
bears the burden of proving both 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.
Similarly, the relator has the burden of providing the Court with a sufficient mandamus
record to establish her right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837
(Tex. 1992) (orig. proceeding); In re Athans, 458 S.W.3d 675, 676 (Tex. App.—Houston
[14th Dist.] 2015, orig. proceeding); see TEX. R. APP. P. 52.3(k) (specifying the required
contents for the appendix); id. R. 52.7(a) (specifying the required contents for the record).
As it pertains to this case, mandamus relief is available if a trial court grants a
grandparent’s request for temporary access to grandchildren where the grandparent fails
to prove by a preponderance of the evidence that denial of possession of or access to
the child would significantly impair the child’s physical health or emotional well-being. See
In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010) (orig. proceeding) (per curiam); In re
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Derzapf, 219 S.W.3d 327, 335 (Tex. 2007) (orig. proceeding) (per curiam); In re J.M.G.,
553 S.W.3d 137, 140 (Tex. App.—El Paso 2018, orig. proceeding).
The Court, having examined and fully considered the petition for writ of mandamus,
the incomplete record provided by relator, and the applicable law, is of the opinion that
Turan has not met her burden to obtain mandamus relief. In this regard, we note that
Turan previously requested mandamus relief regarding the same temporary orders that
are subject to review in this proceeding. See In re Turan, No. 13-19-00078-CV, 2019 WL
1305966, at *1–2 (Tex. App.—Corpus Christi Mar. 22, 2019, orig. proceeding) (mem. op.).
We denied the petition for writ of mandamus because Turan “failed to provide the Court
with a record which complies with the appellate rules.” Id. In that case, Turan had failed
to file the reporter’s record from the underlying proceeding. See TEX. R. APP. P.
52.7(a)(2).
Here, in this subsequent petition for writ of mandamus, Turan has furnished the
Court with the December 6, 2018 order subject to review, the transcript and exhibits from
the November 27, 2018 hearing, and copies of various rules and statutes, but she has
not included any of the underlying pleadings pertaining to the temporary orders. See id.
R. 52.7(a)(1). The pleadings which would be “material to the relator’s claim for relief”
would include the petition or motion on which the temporary orders were granted, any
response thereto, and any other pleadings related to the orders. See id. Based on the
petition for writ of mandamus, it would appear that at least one of the pleadings at issue
is supported by an affidavit and the underlying hearing was held, in part, on a motion for
sanctions. None of these documents appear in the record before us. Thus, Turan’s
petition is deficient. See id.; Johnson v. Hughes, 663 S.W.2d 11, 12 (Tex. App.—Houston
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[1st Dist.] 1983, orig. proceeding) (“Mandamus actions require certainty in the pleadings
and as to the facts.”); see also In re Stuer, No. 05-18-01346-CV, 2018 WL 6167962, at
*1 (Tex. App.—Dallas Nov. 26, 2018, orig. proceeding) (mem. op.) (denying mandamus
relief where “the mandamus record does not include a certified or sworn copy of the order
complained of, all pleadings related to that order, or a hearing transcript”). Accordingly,
without reaching the merits, we deny the petition for writ of mandamus and all relief sought
therein.
LETICIA HINOJOSA
Justice
Delivered and filed the
16th day of May, 2019.
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