IN RE: JUAN ANGEL GUERRA IN HIS CAPACITY AS DISTRICT ATTORNEY OF WILLACY COUNTY, TEXAS--Appeal from 197th District Court of Willacy County

NUMBER 13-06-00600-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE: JUAN ANGEL GUERRA, Relator

On Petition for Writ of Prohibition, Writ of Mandamus and

Motion for Temporary Relief

MEMORANDUM OPINION

Before Justices Hinojosa, Castillo, and Garza

Memorandum Opinion by Justice Hinojosa

On October 23, 2006, relator, Juan Angel Guerra, filed a petition for a writ of prohibition and a writ of mandamus requesting that this Court (1) issue a peremptory writ to respondent, Larry Spence, in his capacity as Sheriff of Willacy County, Texas, forbidding him from accepting any bonds from real party in interest, Connie and Fina's Bail Bond, and (2) issue a peremptory writ to respondent, the Honorable Migdalia Lopez, presiding judge of the 197th District Court of Willacy County, Texas, forbidding her from directing Sheriff Larry Spence to accept bail bonds from Connie and Fina's Bail Bonds. (1) Relator also filed a motion for temporary relief requesting that this Court temporarily issue peremptory writs against respondents, Sheriff Larry Spence and the Honorable Magdalia Lopez.

Mandamus is an extraordinary remedy, that will issue only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124,135 (Tex. 2004)); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985); In re Taylor, 113 S.W.3d 385, 389 (Tex. App.-Houston [1st Dist.] 2003, orig. proceeding).

A trial court abuses its discretion when it acts arbitrarily or unreasonably and without reference to any guiding rules or principles. See Walker, 827 S.W.2d at 839; In re Taylor, 113 S.W.3d at 389. The abuse-of-discretion standard has different applications in different circumstances. Walker, 827 S.W.2d at 839. Because a trial court has no discretion in determining what the law is, which law governs, or how to apply the law, we review this category of discretionary rulings de novo. See Walker, 827 S.W.2d at 840. In contrast, when we review a ruling that results from the trial court's having resolved underlying facts, we must defer to the trial's factual resolutions and any credibility determinations that may have affected those resolutions and may not substitute our judgment for the trial court's judgment in those matters. See id. at 839-40.

Here, relator contends that respondent, the Honorable Magdalia Lopez, has postponed any hearing or decision in the underlying proceeding seeking to enjoin the real party in interest from making further bonds and the sheriff from accepting the bonds. While mandamus relief may be available to compel a hearing, relator has not requested this relief. Further, he has failed to show how he is entitled to the relief he is requesting, as he has failed to provide any documents from the underlying proceeding showing that respondent, the Honorable Magdalia Lopez, has committed a clear abuse of discretion. See Walker, 827 S.W.2d at 837 (the party seeking relief has the burden to provide a sufficient record to establish entitlement to mandamus relief).

As to respondent, Sheriff Larry Spence, this Court does not have jurisdiction to issue a writ of mandamus against the Willacy County Sheriff under these facts because it is not necessary to enforce this court's jurisdiction. Tex. Gov't Code Ann. 22.221 (Vernon 2004).

Regarding relator's writ of prohibition, section 22.221(a) of the Government Code sets the limits of our jurisdiction to issue writs. See Tex. Gov't Code Ann. 22.221(a) (Vernon 2004). The statute provides, "Each court of appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court." Id. Under section 22.221(a) our authority to issue a writ of prohibition "is limited to cases in which this Court has actual jurisdiction of a pending proceeding." Faherty v. Knize, 764 S.W.2d 922, 923 (Tex. App.-Waco 1989, orig. proceeding).

Based upon the limited record provided to us, we are unable to conclude that relator has a clear right to the relief he seeks in his petition for writ of mandamus. Accordingly, we deny the relief requested in the petition for mandamus. Regarding the petition for writ of prohibition, we have no pending proceeding before us for which the issuance of a writ of prohibition would be necessary to enforce our jurisdiction. Accordingly, we do not have jurisdiction to issue the requested writ. Relator's petition for writ of prohibition is denied.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 13th day of November, 2006.

1. Relator also names the Honorable Menton Murray, Jr., the Judge assigned to determine a Motion to Recuse Judge Migdalia Lopez, and the Willacy County Bail Bond Board as respondents. However, relator fails to request any specific relief as to these parties.