







COURT OF APPEALS








COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
 
 



 
 
 
IN RE:
 
NEW CENTURY MORTGAGE CORP.
  OF CA.,
 
Relator.


 
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                NO.
  08-03-00521-CV
 
AN ORIGINAL PROCEEDING 
 
IN MANDAMUS
 
 
 
 




 
 


 
 


 
 



MEMORANDUM
OPINION ON PETITION FOR WRIT OF MANDAMUS
This is an original proceeding in
mandamus.  New Century Mortgage Corp. of
CA., relator, seeks a writ of mandamus requiring that the Honorable Linda Chew,
Judge of the 327th District Court, set aside a temporary restraining
order.  For the reasons stated below, we
deny relief.
STANDARD
OF REVIEW
Mandamus will lie only to correct a
clear abuse of discretion.  Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).  Moreover, there must be no other adequate
remedy at law.  Id.




1.  Clear abuse of
discretion
An appellate court rarely interferes
with a trial court=s exercise of discretion. 
A clear abuse of discretion warranting correction by mandamus occurs
when a court issues a decision which is without basis or guiding principles of
law.  See Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).  With respect to resolution of factual issues
or matters committed to the trial court=s discretion, the reviewing court may
not substitute its judgment for that of the trial court.  Walker, 827 S.W.2d at 839-40.  The relator must therefore establish that the
trial court could reasonably have reached only one decision.  Id. 
Even if the reviewing court would have decided the issue differently, it
cannot disturb the trial court=s decision unless it is shown to be arbitrary and
unreasonable.  Id.  With respect to a trial court=s determination of the legal
principles controlling its ruling, the standard is much less deferential.  A trial court has no Adiscretion@ in determining what the law is or
applying the law to the facts.  Thus, a
clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion, and may result in appellate reversal by
extraordinary writ.  Walker, 827
S.W.2d at 840.
2.  No adequate remedy
by appeal




An appellate court will deny mandamus
relief if another remedy, usually appeal, is available and adequate.  Street v. Second Court of Appeals, 715
S.W.2d 638, 639-40 (Tex. 1986) (orig. proceeding).  Mandamus will not issue where there is A>a clear and adequate remedy at law,
such as a normal appeal.=@ 
Walker, 827 S.W.2d at 840 (quoting State v. Walker, 679
S.W.2d 484, 485 (Tex. 1984)).  Mandamus
is intended to be an extraordinary remedy, available only in limited
circumstances.  The writ will issue A>only in situations involving manifest
and urgent necessity and not for grievances that may be addressed by other
remedies.=@ 
Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.
1989) (quoting James Sales, Original Jurisdiction of the Supreme Court and the
Courts of Civil Appeals of Texas, in Appellate Procedure in Texas, Sec.
1.4(1)(b) at 47 [2d Ed. 1979]).
APPLICATION
OF THE LAW TO THE FACTS BEFORE THE COURT
Respondent issued a temporary
restraining order prohibiting relator from repossessing and selling certain
real property at a public sale scheduled for January 6, 2004 because relator
did not provide thirty days= notice as required by Article 16, Section 50 of the Texas
Constitution.[1]  Respondent=s order also set the matter for a
hearing at 11 a.m. on January 6, 2004. 
Relator has not notified the Court of the outcome of the hearing.  Further, relator did not file a motion for
emergency relief with its petition for writ of mandamus.  Because the time and date scheduled for the
public sale 




has expired, the issue raised by the mandamus petition has
become moot.  Consequently, we deny the
relief requested in the petition for mandamus.
 
SUSAN
LARSEN, Justice
January 22, 2004
 
Before Panel No. 4
Barajas, C.J., Larsen, and
McClure, JJ.
 




[1]Tex. Const. art. 16, ' 50 (pertaining to homestead;
protection from forced sale; mortgages, trust deeds and liens).


