                            NUMBER 13-11-00145-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

                         IN RE EMEX HOLDINGS L.L.C.


                      On Petition for Writ of Mandamus.


             CONCURRING MEMORANDUM OPINION
                  ON RECONSIDERATION
                       Before the Court En Banc
          Concurring Memorandum Opinion on Reconsideration
                          by Justice Perkes
      I agree with the Court’s basic holding that the mandamus should be granted, but

concur because I believe our opinion of June 21, 2012, correctly disposed of the Naims’

contention that we should be able to consider recent changes in the procedural posture of

the case. See In re Emex Holdings, L.L.C., No. 13-11-00146-CV, 2012 WL 2354837 at

*11 (Tex. App.—Corpus Christi June 21, 2012, orig. proceeding)(mem. op)..The Naims

have shown no reason for conditioning mandamus relief on further trial court
proceedings.



       Citing Henderson v. Floyd, 891 S.W.2d 252 (Tex. 1995) (per curiam), the Naims

contend that we should not direct the trial court to enforce the forum-selection clause

because the trial court should be given the opportunity to consider recent changes in the

procedural posture of this case, specifically including the effect of a “final judgment”

issued by the court of appeals in Mexico.

       I believe the majority’s reliance on Henderson is misplaced. In Henderson, the

Texas Supreme Court conditionally granted mandamus relief directing the trial court to

vacate its order denying a motion for disqualification of counsel. Id. at 255. However,

the court specifically noted that the real party in interest contended that the relator waived

his right to disqualify counsel by failing to move to stay the proceedings while the motion

for rehearing was pending.       Id. at 254–55.     The court held that the real party's

“contention involves factual assertions that should be addressed in the first instance by

the district court, and our opinion today does not preclude the district court from

considering changed circumstances which would cast relator's motion for disqualification

in a different light,” but “[a]bsent such circumstances, however, [counsel is] disqualified.”

Id. at 255.

       As we stated in our original opinion, Henderson stands for the proposition that

there may be instances where it is appropriate to allow the trial court to consider new

factual assertions or changed circumstances; however, I do not believe that the doctrine

applies in this case for the reasons stated in our original opinion. Henderson is different


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from this case because there, the party raising changed circumstances relied upon its

opponent’s conduct to justify further trial court action. The Henderson Court opined that

the law firm was disqualified because an employee worked on the case for opposing

counsel. Id. at 255. Here, the Naims are relying on their own conduct as evidence of

changed circumstances.

       As we stated in our original opinion, it is axiomatic that an appellate court review

the actions of the trial court based on the record before the court at the time it makes its

ruling. In re Emex, 2012 WL 2354837, at *11; see Axelson, Inc. v. McIlhany, 798 S.W.2d

550, 556 (Tex. 1990) (orig. proceeding) (concluding that where evidence and rule

changes were not presented to the trial court, they did “not form a basis for us to find that

the trial court abused its discretion in this mandamus proceeding”); Sabine OffShore

Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (orig. proceeding)

(holding that in an original proceeding, the appellate court may not consider evidence that

was not part of the record before the trial court except to decide its own jurisdiction); In re

Taylor, 113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003, (orig. proceeding)

(“We will not consider exhibits that were not part of the trial court record at the time of the

hearing on the motion that is the subject of this original proceeding.”); see also Methodist

Hosps. v. Tall, 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi 1998, no pet.) (“It is

axiomatic that an appellate court review actions of a trial court based on the materials

before the trial court at the time it acted.”). Thus, I would adhere to our original holding.

       For the above reasons, I concur.


                                                   GREGORY T. PERKES

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                               Justice

Delivered and filed the
18th day of April, 2013.




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