in Re Mercedes Martinez ( 2015 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
September 10, 2015.
In The
Fourteenth Court of Appeals
NO. 14-15-00585-CV
IN RE MERCEDES MARTINEZ, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
247th District Court
Harris County, Texas
Trial Court Cause No. 2013-08674
MEMORANDUM OPINION
On July 10, 2015, relator Mercedes Martinez filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also
Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable
John Schmude, presiding judge of the 247th District Court of Harris County to set
aside: (1) the Agreed Final Decree of Divorce (“Divorce Decree”) signed on
November 12, 2013, (2) the Order of Enforcement of Passport Provisions from the
Divorce Decree signed on June 26, 2015, and (3) the visiting judge’s finding of
contempt made on July 7, 2015.
On September 2, 2015, the real party-in interest filed a notice with our court
that he had filed in the trial court a notice of nonsuit of his action to enforce the
Divorce Decree and asked this court to dismiss the petition for writ of mandamus
as moot. Because Relator may suffer collateral consequences from the Divorce
Decree, the petition is not moot. See In re Choice! Energy, L.P., 325 S.W.3d 805,
809-10 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding). We therefore
deny the motion to dismiss.
Relator did not appeal the Divorce Decree or file a bill of review to set it
aside, but instead seeks to collaterally attack this final judgment through her
petition for writ of mandamus more than a year after the Divorce Decree was
signed. Relator contends that the Divorce Decree should be set aside because it
was entered without her consent and one of its provisions is contrary to the parties’
mediated settlement agreement. We find it unnecessary to decide whether Divorce
Decree is void or voidable for these reasons because the Texas Supreme Court has
held that a consent judgment may only be set aside through a direct appeal or a bill
of review. See Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985) (per curiam).
See also Barrera v. State, 130 S.W.3d 253, 259 (Tex. App.—Houston [14th Dist.]
2004, no pet.) (citing Middleton for the proposition that when the plenary power of
the court rendering the judgment has expired, a bill of review is the exclusive
method for attacking a judgment entered in a case in which the court had
jurisdictional power to render it).
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Relator has not brought a timely appeal or bill of review to set aside the
Divorce Decree. Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Boyce, McCally, and Donovan.
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