in Re Jaime Jerry Munoz ( 2011 )

NUMBER 13-11-00384-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE JAIME JERRY MUÑOZ
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion Per Curiam1
Relator, Jaime Jerry Muñoz, filed a petition for writ of mandamus and a “Motion
for Emergency Relief to Stay Underlying Trial Court Proceeding” in the above cause on
June 20, 2011. Relator seeks mandamus relief to compel the trial court to vacate its
order denying a motion to transfer venue under the family code. By order issued that
same day, the Court ordered the motion for emergency relief to be carried with the case
and requested that the real party in interest, Victor Quintanilla, file a response to the
petition for writ of mandamus.
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See TEX. R. APP. P. 52.8(d) (“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).
On June 28, 2011, Quintanilla filed an unopposed motion for extension of time to
file his response, which we granted. On July 7, 2011, Quintanilla filed his response to
the petition for writ of mandamus and also filed a response to relator’s motion for
emergency relief.
On July 15, 2011, relator filed a “Reply Brief and Request to Strike.” On July 25,
2011, the real party in interest filed an “Unopposed Motion for Extension of Time to File
his Sur-Reply and Response to Relator’s Reply Brief and Request to Strike.” We herein
GRANT this motion. On July 29, 2011, the real party in interest filed his “Sur-Reply and
Response to Request to Strike.”
We GRANT in part and DENY in part relator’s “Reply Brief and Request to
Strike.” Specifically, we GRANT relator’s request to strike those materials in the real
party’s appendix which were not presented to the trial court. See Sabine OffShore
Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (original proceeding)
(holding that in an original proceeding the appellate court may not consider evidence
that was not part of the record before the trial court except to decide its own
jurisdiction); In re Taylor, 113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003,
orig. proceeding) (“We will not consider exhibits that were not part of the trial court
record at the time of the hearing on the motion that is the subject of this original
proceeding.”); Methodist Hosps. v. Tall, 972 S.W.2d 894, 898 (Tex. App.—Corpus
Christi 1998, no pet.) ("It is axiomatic that an appellate court reviews actions of a trial
court based on the materials before the trial court at the time it acted."). All other relief
sought in the “Reply Brief and Request to Strike” is DENIED.
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The Court, having examined and fully considered the petition for writ of
mandamus and the response thereto, and the related briefing provided by the parties, is
of the opinion that relator has not shown himself entitled to the relief sought based on
mandatory venue under the specific statutes at issue herein. Compare TEX. FAM. CODE
ANN. §§ 155.201, 155.204 (West 2008) (concerning mandatory transfers of venue), with
id. §§ 155.001, 155.002, 155.003 (West 2008) (concerning courts of continuing and
exclusive jurisdiction). Accordingly, the “Motion for Emergency Relief to Stay
Underlying Trial Court Proceeding,” which was previously carried with the case, is
DENIED. The petition for writ of mandamus is DENIED. This denial shall operate
without prejudice to any jurisdictional issues which may be raised by any party in the
trial court or, subsequently, with this Court. See TEX. R. APP. P. 52.8.
PER CURIAM
Delivered and filed the
15th day of August, 2011.
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