in Re: Allen McElvany

NUMBER 13-08-159-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
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IN RE ALLEN McELVANY
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On Emergency Motion for Stay
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MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides
Per Curiam Memorandum Opinion
Allen McElvany has filed an emergency motion for stay with this Court. In the
motion, McElvany requests that this Court stay an order signed on March 26, 2008, by the
Honorable Thomas Greenwell, Judge of the 319th District Court of Nueces County,
denying McElvany’s motion for protective order in a discovery dispute. McElvany asks that
we stay “all proceedings in the court below until the opposing party has pointed out any
error in asserting privilege and until a full evidentiary hearing has been held by the trial
court.”
As an initial matter, we note that McElhany has filed neither a notice of appeal nor
an original proceeding stemming from the disputed order. An order allowing discovery is
not subject to interlocutory appeal, but may be subject to review by petition for writ of
mandamus. See, e.g., Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998) (per curiam).
("Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders
only if a statute explicitly provides appellate jurisdiction."); In re Graco Children's Prods.,
Inc., 210 S.W.3d 598, 600 (Tex. 2006) (per curiam) ("[An] order that compels overly broad
discovery well outside the bounds of proper discovery is an abuse of discretion for which
mandamus is the proper remedy.") (quotations omitted). Accordingly, we construe
McElhany’s motion in this context.
An original proceeding must be commenced before an appellate court can grant
temporary relief under Texas Rule of Appellate Procedure 52.10. In re Ramirez, 133
S.W.3d 664, 664-665 (Tex. App.–Corpus Christi 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. Until an appropriate petition is filed, there is no dispute before this Court. See In
re Kelleher, 999 S.W.2d at 52.
Because McElvany has not filed a petition for writ of mandamus, we conclude we
have no jurisdiction to consider the emergency motion. Accordingly, this matter is
DISMISSED FOR WANT OF JURISDICTION without prejudice to McElvany’s right to
reassert the motion after commencing a proceeding pursuant to Texas Rule of Appellate
Procedure 52.1.
PER CURIAM
Memorandum Opinion delivered and
filed this 27th day of March, 2008.
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