                                 NUMBER 13-17-00618-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


            IN RE PABLO SERGIO ORTEGA AND JULIA ORTEGA


                           On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

             Before Justices Rodriguez, Benavides, and Longoria
                Memorandum Opinion by Justice Rodriguez1

        Relators Pablo Sergio Ortega and Julia Ortega filed a petition for writ of mandamus

in the above cause seeking to compel the county court to dismiss the underlying case

regarding enforcement of a restrictive covenant. By two issues, relators assert that the

county court lacks jurisdiction over the appeal filed by real party in interest, Omar Jasso,

from the justice of the peace court because (1) the appeal was not filed timely, and (2)

the county court did not rule on the real party’s attempted appeal within seventy-five days.



        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
See TEX. R. CIV. P. 329b(c) (providing that a motion for new trial is overruled by operation

of law if not determined by written order within seventy-five days after the judgment was

signed); id. R. 506.1 (stating that a party may appeal a judgment from justice court by

“filing a bond, making a cash deposit, or filing a Statement of Inability to Afford Payment

of Court Costs” with the justice court within twenty-one days after the judgment is signed

or the motion to reinstate, motion to set aside, or motion for new trial, if any, is denied”).

       This Court requested that Jasso, or any others whose interest would be directly

affected by the relief sought, file a response to the petition for writ of mandamus on or

before the expiration of ten days. See TEX. R. APP. P. 52.2, 52.4, 52.8. In response to

our directive, Jasso filed a letter with this Court stating that he understood that relators

would not be pursuing the petition for writ of mandamus based on discussions between

the parties at a hearing in county court, and therefore, Jasso would not be filing a

response to the petition for writ of mandamus.

       Relators have now filed an amended unopposed motion to abate this original

proceeding. Relators contend that this mandamus is “unripe” because the trial court has

ordered the real parties to attempt to obtain a cost bond from the justice of the peace

court. Relators request that we abate this matter “to allow the trial court to act upon the

issues under mandamus review, to allow the issue to fully ripen and effectuate the

jurisdiction of the current matter.”

       The Court, having examined and fully considered the amended motion to abate, is

of the opinion that the matter should instead be dismissed without prejudice to relators’

right to refile the petition for writ of mandamus if necessary. If the underlying matter is

not resolved and relators seek to refile the petition for writ of mandamus, the Court will



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not assess filing fees for those pleadings. Accordingly, relators’ motion to abate is

DENIED and the petition for writ of mandamus is DISMISSED without prejudice. See

TEX. R. APP. P. 52.8(a).

                                                          NELDA V. RODRIGUEZ
                                                          Justice


Delivered and filed the 13th
day of December, 2017.




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