                                    NUMBER 13-10-00157-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                  IN RE: COUNSEL FINANCIAL SERVICES, L.L.C.


                             On Petition for Writ of Mandamus.


                               MEMORANDUM OPINION
       Before Chief Justice Valdez and Justices Benavides and Vela
                    Memorandum Opinion Per Curiam1

        Through this original proceeding, relator, Counsel Financial Services, L.L.C.

(“Counsel Financial”), seeks to compel the trial court to “vacate that portion of the

temporary injunction order finding that Counsel Financial waived any objection to venue”

and to “order that all claims against Counsel Financial be transferred to Bexar County,

Texas.” The Court has requested and received a response to the petition for writ of

mandamus from the real party in interest. The response states that the trial court has set

a hearing on relator’s motion to transfer venue for May 18, 2010.



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          See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen denying relief, the court m ay hand dow n an opinio n but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).
       Mandamus will not issue unless (1) the relator has made a demand on the

respondent, and (2) the respondent has denied relief or otherwise refused to act. See In

re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding); Terrazas v. Ramirez, 829

S.W.2d 712, 723 (Tex. 1991) (orig. proceeding); Axelson, Inc. v. McIlhany, 798 S.W.2d

550, 556 (Tex. 1990) (orig. proceeding). An exception to this “demand and refusal”

requirement arises if demand would be futile. See In re Perritt, 992 S.W.2d at 446;

Terrazas, 829 S.W.2d at 723.

       Based on the record herein, relator’s motion to transfer venue has not yet been

presented to or heard by the trial court, the trial court has not yet ruled on the motion to

transfer venue, and it does not appear that the submission of this issue to the trial court will

be futile. See In re Perritt, 992 S.W.2d at 446; Terrazas, 829 S.W.2d at 723. We

recognize that language exists in the temporary injunction order that references venue;

however, a properly noticed hearing on venue, based on the pertinent pleadings and

evidence, has not been held before the trial court. In short, the issue is premature because

the trial court has not yet ruled on relator’s motion to transfer venue. See In re Hearn, 137

S.W.3d 681, 686 (Tex. App.–San Antonio 2004, orig. proceeding) (denying petition for writ

of mandamus seeking to compel the trial court to transfer venue).

       The Court, having examined and fully considered the petition for writ of mandamus

and the response thereto, is of the opinion that relator has not shown itself entitled to the

relief sought. Our decision herein is not a determination of the merits of this case and does

not preclude further presentation of the issues herein to the trial court or this Court, if such

be necessary. Accordingly, the stay previously imposed by this Court is LIFTED. See TEX .

R. APP. P. 52.10(b) (“Unless vacated or modified, an order granting temporary relief is

effective until the case is finally decided.”). The petition for writ of mandamus is DENIED


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without prejudice. See id. 52.8(a).

                                          PER CURIAM


Delivered and filed the
27th day of April, 2010.




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