law-mandamus-vs-interlocutory-appeal

MANDAMUS STANDARD - AVAILABILITY OF INTERLOCUTORY APPEAL

To be entitled to the extraordinary relief of a writ of mandamus, a relator must show that the trial court
clearly abused its discretion and he has no adequate remedy by appeal.  In re Team Rocket, L.P., 256 S.
W.3d 257, 259 (Tex. 2008) (orig. proceeding). Mandamus may not be used as a form of interlocutory
appeal.  N.H. Helicopters, Inc. v. Brown, 841 S.W.2d 424, 425 (Tex. App.—Dallas 1992, orig.
proceeding).  Section 51.014(a)(4) specifically provides for an interlocutory appeal from an order
granting a temporary injunction.  Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4).  An interlocutory
appeal provides an adequate remedy.  See In re Henry, 274 S.W.3d 185, 189 n.2 (Tex. App.—Houston
[1st Dist.] 2008, orig. proceeding) (“Because Henry had an adequate remedy by appeal of the temporary
injunction, mandamus was not appropriate as to the temporary injunction, and we denied mandamus as
to the TRO.”).  

Relator, however, argues that he does not have an adequate remedy by appeal in this case because
the court of appeals will not be able to hear an interlocutory appeal of the temporary injunction before
trial scheduled for September 29, 2009, in Coke County.  Relator asserts that he cannot prepare his
defense in the Coke County case because the temporary injunction prohibits him from (1) challenging
the receiver’s assignments; (2) alleging and proving the trial court did not have the right to order the
assignments under threat of contempt; (3) challenging the altered effect date on the receiver’s
assignments; (4) arguing that the receiver is not a proper beneficiary; and (5) arguing that the receiver’s
assignments were properly revoked.

However, Rule 29.3 of the Texas Rules of Appellate Procedure allows a party appealing interlocutory
orders to seek temporary relief pending disposition of the accelerated appeal.  See Tex. R. App. P. 29.3
(“When an appeal from an interlocutory order is perfected, the appellate court may make any temporary
orders necessary to preserve the parties’ rights until disposition of the appeal and may require
appropriate security.”).  Therefore, the availability of temporary relief pending an interlocutory appeal
provides an adequate remedy by appeal.  See In re Autonation, No. 14-05-00362-CV, 2005 WL 914182,
at *1 (Tex. App.—Houston [14th Dist.] Apr. 15, 2005, orig. proceeding) (mem. op.), mand. granted on
other grounds, 228 S.W.3d 663 (Tex. 2007) (“Relators have not sought temporary relief under this rule,
but the availability of temporary relief on [interlocutory] appeal is sufficient to establish that relator’s
remedy by appeal is adequate.”).[1]

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  

In Re Holland (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Frost)
(mandamus vs
interlocutory appeal and temporary order, challenge to trial court's temporary injunction)
MOTION OR WRIT DENIED: Opinion by
Justice Brock Yates  
Before Chief Justice Hedges, Justices Brock Yates and Frost   
14-09-00656-CV  In Re Robert V. Holland, Jr.   
Appeal from 113th District Court of Harris County
Trial Court Judge:
Patricia Ann Hancock


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