                                 NUMBER 13-08-159-CV

                               COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG
____________________________________________________________

                   IN RE ALLEN McELVANY
____________________________________________________________

                 On Emergency Motion for Stay
____________________________________________________________

                            MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Benavides
                   Per Curiam Memorandum Opinion

          Allen McElvany has filed an emergency motion for stay with this Court. In the

motion, McElvany requests that this Court stay an order signed on March 26, 2008, by the

Honorable Thomas Greenwell, Judge of the 319th District Court of Nueces County,

denying McElvany’s motion for protective order in a discovery dispute. McElvany asks that

we stay “all proceedings in the court below until the opposing party has pointed out any

error in asserting privilege and until a full evidentiary hearing has been held by the trial

court.”

          As an initial matter, we note that McElhany has filed neither a notice of appeal nor

an original proceeding stemming from the disputed order. An order allowing discovery is
not subject to interlocutory appeal, but may be subject to review by petition for writ of

mandamus. See, e.g., Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998) (per curiam).

("Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders

only if a statute explicitly provides appellate jurisdiction."); In re Graco Children's Prods.,

Inc., 210 S.W.3d 598, 600 (Tex. 2006) (per curiam) ("[An] order that compels overly broad

discovery well outside the bounds of proper discovery is an abuse of discretion for which

mandamus is the proper remedy.") (quotations omitted).            Accordingly, we construe

McElhany’s motion in this context.

       An original proceeding must be commenced before an appellate court can grant

temporary relief under Texas Rule of Appellate Procedure 52.10. In re Ramirez, 133

S.W.3d 664, 664-665 (Tex. App.–Corpus Christi 2003, orig. proceeding); In re Kelleher,

999 S.W.2d 51, 52 (Tex. App.–Amarillo 1999, orig. proceeding); see TEX . R. APP. P. 52.1,

52.10. Until an appropriate petition is filed, there is no dispute before this Court. See In

re Kelleher, 999 S.W.2d at 52.

       Because McElvany has not filed a petition for writ of mandamus, we conclude we

have no jurisdiction to consider the emergency motion.           Accordingly, this matter is

DISMISSED FOR WANT OF JURISDICTION without prejudice to McElvany’s right to

reassert the motion after commencing a proceeding pursuant to Texas Rule of Appellate

Procedure 52.1.

                                                          PER CURIAM


Memorandum Opinion delivered and
filed this 27th day of March, 2008.




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