Opinion
No. 08-16-00035-CV
04-06-2016
IN RE: MICHAEL J. BIEN AND ESTHER BIEN, Relator.
AN ORIGINAL PROCEEDING IN MANDAMUS MEMORANDUM OPINION
Relators, Michael J. Bien and Esther Bien, have filed a petition for writ of mandamus against the Honorable Mike Swanson, Judge of the 143rd District Court of Reeves County, Texas, asking that we order Respondent to set aside an order clarifying and enforcing a final decree of divorce. They also request issuance of the writ of prohibition to terminate enforcement of the challenged order. We deny the requested relief.
A writ of prohibition serves a limited purpose in that it enables a superior court to protect and enforce its jurisdiction and judgments. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex. 1989); In re Cap Rock Energy Corporation, 225 S.W.3d 160 (Tex.App.--El Paso 2005, orig. proceeding). It is not an independent proceeding brought to prohibit an action, but is an ancillary proceeding that is invoked in aid of an appellate court's jurisdiction that has otherwise been properly invoked. In re Restrepo, 08-14-00292-CV, 2014 WL 5800228 (Tex.App.--El Paso Nov. 7, 2014, orig. proceeding). Absent actual jurisdiction over a pending proceeding, an appellate court does not have jurisdiction to issue a writ of prohibition requiring a trial court to refrain from performing a future act. Id. Relators do not assert in their petition an appeal is pending. Further, we have reviewed our records and do not find a pending appeal related to these parties or the challenged order. Consequently, we do not have jurisdiction to grant Relators' request for issuance of a writ of prohibition.
To be entitled to mandamus relief, a relator must meet two requirements. First, the relator must show that the trial court clearly abused its discretion. In re Prudential Insurance Company of America, 148 S.W.3d 124, 135 (Tex. 2004). Second, the relator must demonstrate that there is no adequate remedy by appeal. Id. at 136. Relators have failed to establish that they are entitled to mandamus relief. Accordingly, we deny the petition for writ of mandamus. April 6, 2016
ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ.