in Re: Veronica Moncivais ( 2009 )

NUMBER 13-08-00523-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE: VERONICA MONCIVAIS
On Petition for Writ of Mandamus
MEMORANDUM OPINION
Before Justices Yañez, Garza, and Vela
Per Curiam Memorandum Opinion1
Relator, Veronica Moncivais, filed a petition for writ of mandamus with this Court on
September 3, 2008, through which she seeks to set aside the trial court’s disbursement of
funds held in the registry of the court. The Court requested and received a response from
the real party in interest, Felipe Garcia, Jr.,2 and further received a supplemental brief from
relator. We deny the petition for writ of mandamus.
1
See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen de nying relief, the court m ay hand dow n an opinio n but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).
2
The real party in interest, Felipe Garcia, Jr., filed several m otions for extension of tim e to file his
response herein. Those m otions which were not previously disposed of by this Court are herein GRANTED.
The allegations made by relator in this original proceeding raise a serious question
regarding the merits of the requested relief. However, it is not at all clear that this matter
is properly raised before the Court when the petition for writ of mandamus includes an
incomplete record of the proceedings. See generally TEX . R. APP. P. 52.3(k), 52.7.
Relator complains that Judge Bobby Flores, Presiding Judge of the 139th Judicial
District Court for Hidalgo County, Texas, signed an order disbursing funds interpleaded into
the court’s registry when the matter was actually pending before the 93rd Judicial District
Court for Hidalgo County, Texas. In response, real parties in interest assert that relator did
not disclose to this Court the existence of an order transferring the case to the 139th
Judicial District Court.
Relator complains that the interpleaded funds were disbursed without a proper
adjudication of the claims to those funds. Again, the real parties respond that relator did
not disclose to this Court the existence of a summary judgment proceeding heard and
decided by the 332nd Judicial District Court for Hidalgo County pursuant to a transfer order
by agreement of the judge under the Local Rules of Hidalgo County District Courts.
Relator complains of the 139th Judicial District Court’s subsequent denial of a
request for a temporary restraining order regarding the disbursement of the funds.
However, relator sought this temporary restraining order over a month after the 139th
Judicial District Court ordered the funds disbursed from the registry, and relator’s request
for a restraining order did not seek to preserve the status quo, but, instead, sought an order
to compel the real parties to repay the money disbursed more than a month earlier. It does
not appear that a request for a temporary restraining order was the proper method to
petition for such relief. See generally In re Office of Attorney Gen., 257 S.W.3d 695, 697
(Tex. 2008) (orig. proceeding) (per curiam) (temporary restraing orders are to prevent
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defined, irreparable injuries which would occur if the status quo were not preserved). Thus,
it was not an abuse of discretion for the 139th Judicial District Court to deny this relief.
Relator complains that the 93rd Judicial District Court failed to reconsider the prior
decision of the 139th Judicial District Court denying the temporary restraining order.
However, mandamus is generally not available to contest the failure to reconsider a prior
ruling because courts are not required to reconsider prior rulings and so it is not an abuse
of discretion to refuse such petitions for reconsideration. See generally Electronic Data
Sys. Corp. v. Tyson, 862 S.W.2d 728, 736-37 n.5 (Tex. App.–Dallas 1993, orig.
proceeding); J.K. and Susie L. Wadley Research and Inst. Blood Bank v. Whittington, 843
S.W.2d 77, 86-87 n. 9 (Tex. App.–Dallas 1992, orig. proceeding). Accordingly, it was not
an abuse of discretion for the 93rd Judicial District Court to deny this relief.
Finally, appellate courts may not deal with disputed areas of fact in a mandamus
proceeding. In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 676 (Tex. 2007) (orig. proceeding);
In re Angelini, 186 S.W.3d 553, 560 (Tex. 2006) (orig. proceeding). This original
proceeding is rife with disputes which we cannot resolve on the record before us.
The Court, having examined and fully considered relator’s petition for writ of
mandamus, the response, and relator’s supplemental brief, is of the opinion that relator has
not shown herself entitled to the relief sought. Accordingly, we DENY the petition for writ
of mandamus. See TEX . R. APP. P. 52.8(d).
PER CURIAM
Memorandum Opinion delivered and filed
this 23rd day of January, 2009.
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