IN RE: RICARDO GARCIA--Appeal from County Court at Law No 6 of Hidalgo County

NUMBER 13-06-00278-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

IN RE RICARDO GARCIA, Relator.

 
On Relator's Petition for Writ of Mandamus
MEMORANDUM OPINION
Before Justices Hinojosa, Ya ez, and Castillo
Memorandum Opinion by Justice Hinojosa

On May 25, 2006, relator, Ricardo Garcia, filed a petition for writ of mandamus requesting that this Court direct respondent, the Honorable Arnoldo Cantu, presiding judge of the County Court at Law No. 5 of Hidalgo County, Texas, to set aside his "judgment for permanent injunction" issued on July 13, 2004, in Cause No. 42,138-E. After reviewing the relator's petition, this Court requested that the real party in interest, Miguel A. Longoria, file a response no later than June 9, 2006. See Tex. R. App. P. 52.4. To date, no such response has been filed.

This original proceeding arises from an opinion issued by this Court on May 18, 2006, denying relator's motion for rehearing in the appeal of Garcia v. Longoria, No. 13-04-639-CV, 2006 Tex. App. LEXIS 4359 (Tex. App.-Corpus Christi, May 18, 2006). On original submission, Garcia attempted to appeal the July 13, 2004 judgment for permanent injunction. See Garcia v. Longoria, 2006 Tex. App. LEXIS 1292 (Tex. App.-Corpus Christi, Feb. 16, 2006, no pet.). However, having found that the trial court issued the judgment for permanent injunction after its plenary power had expired and thus the judgment was void, we dismissed the appeal for want of jurisdiction and indicated that the proper remedy was a writ of mandamus. Id. at *12. In his motion for rehearing, Garcia pointed out that he had previously filed a petition for writ of mandamus related to the same matter, which was denied by this Court because of the pending appeal. We then advised Garcia to file a "new" petition for writ of mandamus. It is that petition for writ of mandamus that is now before us.

Mandamus relief is available only if the court clearly abused its discretion and the party has no adequate remedy by appeal. In re SW. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). Mandamus is proper if a trial court issues an order beyond its jurisdiction. Id. (citing In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)). When a trial court's order is void, however, mandamus relief is available regardless of whether there is an adequate remedy by appeal. Id. Because this Court has already found that the trial court's July 13, 2004 "judgment for permanent injunction" is void, we conclude that mandamus relief is appropriate in this case.

We conditionally grant relator's petition for writ of mandamus, and order respondent to set aside his judgment for permanent injunction issued on July 13, 2004, in Cause No. 42,138-E. The writ will issue only if respondent fails to comply.

 

FEDERICO G. HINOJOSA

Justice

 

Dissenting Memorandum Opinion by Justice Castillo.

 

Memorandum Opinion delivered and filed

this the 24th day of August, 2006.