                                     NO. 07-04-00405-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                           PANEL D

                                      OCTOBER 11, 2004

                            ______________________________


                IN RE DAVID L. JONES AND ALICE REDEKER, RELATORS

                           _________________________________


Before QUINN and REAVIS and CAMPBELL, JJ.


           MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS


       Relators David Lee Jones and Alice Redeker seek a writ of mandamus requesting that

we order the Honorable Felix Klein, Judge of the 154th District Court of Lamb County, to vacate

his order of April 23, 2004, denying their motion to compel discovery. In response, among other

things, real party in interest, William B. Jones, Jr. contends that relators have not demonstrated

that the denial of their motion to compel discovery constituted a clear abuse of discretion by the

trial court. For the reasons set forth, we deny the requested relief.


       Although the discovery rules encourage trial courts to limit discovery to avoid undue

burdens in production, real party had the burden in the trial court to produce some evidence to

support his request for protection. In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex.

1999). Here, relators are entitled to mandamus relief “only to correct a trial court’s clear abuse

of discretion when no adequate remedy at law exists.” In Re Alford Chevrolet-Geo, 997 S.W.2d
at 176. In our review, regarding factual matters, as an appellate court we may not substitute our

judgment for that of the trial court. Walker v. Packer, 827 S.W .2d 833, 837-39 (Tex. 1992); In

re Energas Co., 63 S.W.3d 50, 51 (Tex. App.--Amarillo 2001, orig. proceeding). Therefore, in

determining whether mandamus should issue, we must focus on the record that was before the

trial court and decide whether the decision was not only arbitrary but also amounted to a clear

and prejudicial error of law. In re Bristol-Meyers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998).


       The April 23, 2004 order of the trial court which relators challenge provides in part:


       After hearing the evidence and argument of counsel, the Court finds that
       Plaintiffs’ Motion to Compel Discovery should be in all things denied.


Although the order indicates that relators’ motion was denied after the trial court heard evidence,

the record presented here does not include a reporter’s record of the hearing or an

authenticated transcript of the relevant testimony per Rule 52.7(a)(2) of the Texas Rules of

Appellate Procedure. Moreover, relators’ fact statement in their petition is not supported by a

verified affidavit as required by Rule 52.3. Because we have not been provided with a record

of the evidence heard by the trial court, we are unable to determine whether the denial of

relators’ motion was a clear abuse of discretion by the trial court.


       Accordingly, the petition for writ of mandamus is denied.


                                                     Don H. Reavis
                                                       Justice




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