in Re: Jo Ann Levinson ( 2005 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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                                                                              )     No.  08-05-00008-CV

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IN RE:  JO ANN LEVINSON                              )                   AN ORIGINAL

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                                                                              )     PROCEEDING IN MANDAMUS

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OPINION ON PETITION FOR WRIT OF MANDAMUS

This is an original proceeding in mandamus.  Jo Ann Levinson, Relator, seeks a writ of mandamus requiring the 41st District Court of El Paso County to vacate an order granting a motion to disqualify Relator=s counsel.  For the reasons stated below, we vacate our order granting emergency relief and deny the relief requested in the petition for writ of mandamus.

STANDARD OF REVIEW

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)(orig. proceeding).  Moreover, there must be no other adequate remedy at law.  Id.

1.  Clear abuse of discretion

An appellate court rarely interferes with a trial court=s exercise of discretion.  A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law.  See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)(orig. proceeding).  With respect to resolution of factual issues or matters committed to the trial court=s discretion, the reviewing court may not substitute its judgment for that of the trial court.  Walker, 827 S.W.2d at 839-40.  The relator must therefore establish that the trial court could reasonably have reached only one decision.  Id. at 840.  Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court=s decision unless it is shown to be arbitrary and unreasonable.  Id.  With respect to a trial court=s determination of the legal principles controlling its ruling, the standard is much less deferential.  A trial court has no Adiscretion@ in determining what the law is or applying the law to the facts.  Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.  Walker, 827 S.W.2d at 840.

2.  No adequate remedy by appeal

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate.  Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex. 1986)(orig. proceeding).  Mandamus will not issue where there is Aa clear and adequate remedy at law, such as a normal appeal.@  Walker, 827 S.W.2d at 840, quoting State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984).  Mandamus is intended to be an extraordinary remedy, available only in limited circumstances.  The writ will issue Aonly in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.@  Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989)(quoting James Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas, in Appellate Procedure in Texas, Sec. 1.4(1)(b) at 47 [2d Ed. 1979]).

APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT

The record before us does not reflect that the 41st District Court clearly abused its discretion by granting the motion to disqualify Doris Sipes from representing Levinson in cause number 2004-1917 (styled Jo Ann Levinson v. Luis Aguilar, Individually and as Judge of the 120th District Court, The State of Texas by and through its Secretary of State, Geoffrey Conner, and The County of El Paso by and through its County Judge, Delores Briones). Accordingly, we vacate our prior order granting emergency relief and we deny the relief requested in the petition for writ of mandamus.

February 17, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.