Opinion
NO. 14-16-00623-CR
08-10-2016
IN RE MITCHELL THOMPSON, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS 339th District Court Harris County, Texas
Trial Court Cause No. 1492257
ORDER
On August 9, 2016, relator Mitchell Thompson, filed a petition for writ of mandamus in this court. Relator asks this court to order the Honorable Maria T. Jackson, Judge of the 339th District Court, in Harris County, Texas, to set aside the order dated July 18, 2016, entered in trial court number 1492257, styled State ofTexas vs. Mitchell Thompson that requires relator to submit to an AIDS test on Thursday, August 11, 2016, at 8:00 a.m.
Relator's petition also requests this court to issue temporary relief by staying the order compelling relator to submit to an AIDS test. That request does not comply with Rule of Appellate Procedure 52.10(a), which requires that a request for temporary relief be filed as a separate motion. See Tex. R. App. P. 52.10(a); In re Uresti, 04-11-00196-CV, 2011 WL 1045227, at *1 (Tex. App.—San Antonio Mar. 23, 2011, no pet.) ("any motion for emergency relief must be filed in a separate motion from the petition in accordance with Rule 52.10"). But our court has discretion under Rule of Appellate Procedure 52.10(b) to grant temporary relief on its own initiative. See Tex. R. App. P. 52.10(a). Absent a stay of the order compelling relator to submit to an AIDS test, relator's petition for writ of mandamus may become moot and our court would lose jurisdiction. Accordingly, a majority of the panel, with Justice Brown dissenting, concludes that the order should be stayed until this case is decided.
It appears from the facts stated in the petition and motion that relator's request for relief requires further consideration and that relator will be prejudiced unless immediate temporary relief is granted. We therefore GRANT relator's motion and issue the following order:
We ORDER the order dated July 18, 2016, in trial court cause number 1492257, State of Texas vs. Mitchell Thompson, STAYED until a final decision by this court on relator's petition for writ of mandamus, or until further order of this court. Justice Brown dissents from this stay order because relator did not file a separate motion for stay even after the clerk of the court advised relator that he was required to do so under Rule 52.10(a).
In addition, the court requests the State of Texas, the real party-in-interest, to file a response to the petition for writ of mandamus on or before August 24, 2016. See Tex. R. App. P. 52.4.
PER CURIAM Panel consists of Justices McCally, Brown, and Wise.