                                     NO. 07-04-00405-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                           PANEL D

                                      OCTOBER 18, 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


       The Court sua sponte withdraws its opinion of October 11, 2004, and in lieu thereof

substitutes this opinion. 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).


       An original proceeding filed in this Court must comply with the requirements of Rule 52

of the Texas Rules of Appellate Procedure. Although a reporter’s record of the hearing is

included, relators’ fact statement in their petition is not supported by a verified affidavit as

required by Rule 52.3 of the Texas Rules of Appellate Procedure. Consequently, relator’s

petition for writ of mandamus is denied.


                                                    Don H. Reavis
                                                      Justice



Campbell, J., concurring.




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                                     NO. 07-04-0405-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                     OCTOBER 18, 2004

                            ______________________________


                IN RE DAVID L. JONES AND ALICE REDEKER, RELATORS

                           _________________________________


Before QUINN and REAVIS and CAMPBELL, JJ.


                                   CONCURRING OPINION


       I concur in the court’s denial of relators’ petition. In my opinion, relators have not

demonstrated the trial court’s order reflects a clear abuse of its discretion based on the record

presented. In re Alford Chevrolet-Geo, 997 S.W .2d 175 (Tex. 1999); Walker v. Packer, 827

S.W .2d 833 (Tex. 1992).




                                                    James T. Campbell
                                                        Justice




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