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In re Benavides

Court of Appeals of Texas, Fourth District, San Antonio
Feb 15, 2024
No. 04-24-00006-CV (Tex. App. Feb. 15, 2024)

Opinion

04-24-00006-CV

02-15-2024

IN THE MATTER OF THE GUARDIANSHIP OF CARLOS Y. BENAVIDES, JR., An Incapacitated Person


From the County Court At Law No 1, Webb County, Texas Trial Court No. 2011PB6000081L2-A Honorable Hugo Martinez, Judge Presiding

ORDER

Beth Watkins, Justice

On January 3, 2024, appellant Leticia R. Benavides filed a notice of appeal indicating that she wished to challenge an October 5, 2023 Motion to Modify Temporary Orders Pending Appeal. The clerk's record, which was filed on February 7, 2024, shows that the challenged order arose out of appellant's request for temporary orders pending appeal pursuant to section 6.709 of the Texas Family Code.

Section 6.709 provides, "In a suit for dissolution of a marriage, on the motion of a party or on the court's own motion, after notice and hearing, the trial court may render a temporary order as considered equitable and necessary for the preservation of the property and for the protection of the parties during an appeal[.]" Tex. Fam. Code Ann. § 6.709(a). "The trial court retains jurisdiction to modify and enforce a temporary order under this section unless the appellate court, on a proper showing, supersedes the trial court's order." Id. § 6.709(j). If a trial court renders or modifies a temporary order under section 6.709, a party may seek review of that order by: "(1) motion filed in the court of appeals with jurisdiction or potential jurisdiction over the appeal from the judgment in the case; (2) proper assignment in the party's brief; or (3) petition for writ of mandamus." Id. § 6.709(l). "A temporary order rendered under [section 6.709] is not subject to interlocutory appeal." Id. § 6.709(m).

Here, the "judgment in the case"-the final decree in the underlying divorce proceeding-has already been considered by this court, and the parties' petition for review from our opinion and judgment in that appeal is currently pending in the Texas Supreme Court. See In re Matter of Marriage of Benavides, No. 04-20-00599-CV, 2023 WL 1806844, at *14 (Tex. App.-San Antonio Feb. 8, 2023, pet. filed) (affirming the final decree of divorce); see also Tex. R. Civ. P. 301 ("Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law."). The plain language of section 6.709 does not appear to authorize an independent direct appeal from the order appellant seeks to challenge here. See Tex. Fam. Code § 6.709(l), (m).

For these reasons, we ORDER appellant to show cause in writing by March 18, 2024 why this appeal should not be dismissed for want of jurisdiction. All other appellate deadlines in this case are suspended pending further order of this court.


Summaries of

In re Benavides

Court of Appeals of Texas, Fourth District, San Antonio
Feb 15, 2024
No. 04-24-00006-CV (Tex. App. Feb. 15, 2024)
Case details for

In re Benavides

Case Details

Full title:IN THE MATTER OF THE GUARDIANSHIP OF CARLOS Y. BENAVIDES, JR., An…

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: Feb 15, 2024

Citations

No. 04-24-00006-CV (Tex. App. Feb. 15, 2024)