in Re Justin Smith ( 2017 )

NUMBER 13-17-00602-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE JUSTIN SMITH
On Petition for Writ of Mandamus
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Chief Justice Valdez1
By petition for writ of mandamus, Justin Smith asserts that the trial court’s
September 28, 2017 order of attachment is void because it conflicts with the emergency
orders issued by the Texas Supreme Court following Hurricane Harvey.2 These
emergency orders stated that “all courts in Texas should consider disaster-caused delays
as good cause for modifying or suspending all deadlines and procedures—whether
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.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
2
This original proceeding joins related matters which are currently pending before the Court in
cause numbers 13-16-00612-CV, 13-17-00122-CV, and 13-17-00589-CV.
prescribed by statute, rule, or order—in any case, civil or criminal.” See Supreme Court
of Texas, Extension of Emergency Order Authorizing Modification and Suspension of
Court Procedures in Proceedings Affected by Disaster, Misc. Docket No. 17-9125 (Sept.
26, 2017) (Joint Order, Court of Criminal Appeals Misc. Docket No. 17-013); Supreme
Court of Texas, Emergency Order Authorizing Modification and Suspension of Court
Procedures in Proceedings Affected by Disaster, Misc. Docket No. 17–9091 (Aug. 28,
2017) (Joint Order, Court of Criminal Appeals Misc. Docket No. 17-010);; see also TEX.
GOV'T CODE ANN. § 22.0035 (West, Westlaw through 2017 1st C.S.). This Court
requested and received a response to the petition for writ of mandamus from the real
party in interest, Arnold & Itkin, LLP.
Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300,
302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a
clear abuse of discretion when there is no adequate remedy by appeal. In re Christus
Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator
bears the burden of proving both of these requirements. In re H.E.B. Grocery Co., 492
S.W.3d at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
Mandamus relief is also available when an underlying order is void. In re Nationwide Ins.
Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). In such circumstances,
the relator need not show it lacks an adequate remedy by appeal. In re Sw. Bell Tel. Co.,
35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re Dickason, 987 S.W.2d 570, 571
(Tex. 1998) (orig. proceeding).
The Court, having examined and fully considered the petition for writ of mandamus,
the response, and the applicable law, is of the opinion that the relator has not shown
2
himself entitled to the relief sought. Accordingly, we LIFT the stay previously imposed in
this cause and we DENY the petition for writ of mandamus. See TEX. R. APP. P. 52.8(a).
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
16th day of November, 2017.
3