                                NUMBER 13-13-00553-CV

                                   COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


                                  IN RE SUMMER BACAK


                            On Petition for Writ of Mandamus.


                                MEMORANDUM OPINION

                 Before Justices Rodriguez, Perkes, and Longoria
                        Per Curiam Memorandum Opinion1

       Relator, Summer Bacak, filed a petition for writ of mandamus and a motion for

emergency relief in the above cause on October 18, 2013.                    Through this original

proceeding, relator contends that the trial court erred in rendering a temporary order

granting visitation for relator’s minor children to the alleged biological father of the

children without holding an evidentiary hearing and basing its order on “the papers on

file in this case and the arguments of the attorneys.”



       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).
      To be entitled to the extraordinary relief of a writ of mandamus, the relator must

show that the trial court abused its discretion and that there is no adequate remedy by

appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding).   The relator has the burden of establishing both prerequisites to

mandamus relief.     In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.

proceeding). This burden is a heavy one. See In re Epic Holdings, Inc., 985 S.W.2d 41

(Tex. 1998) (orig. proceeding).   Because a trial court's temporary orders are not

appealable, mandamus is an appropriate means to challenge them. See In re Derzapf,

219 S.W.3d 327, 334–35 (Tex. 2007) (orig. proceeding); In re Russell, 321 S.W.3d 846,

853 (Tex. App.—Fort Worth 2010, orig. proceeding [mand. denied]).

      It is the relator’s burden to properly request and show entitlement to mandamus

relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re

Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding).            In

addition to other requirements, the relator must include a statement of facts supported

by citations to “competent evidence included in the appendix or record,” and must also

provide “a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the appendix or record.” See generally TEX. R. APP. P.

52.3. The relator must also file an appendix and record sufficient to support the claim

for mandamus relief.    See id. R. 52.3(k) (specifying the required contents for the

appendix); id. R. 52.7(a) (specifying the required contents for the record); see also

Walker, 827 S.W.2d at 837.




                                              2
       As a general rule, mandamus will not issue to compel an action that has not first

been demanded and refused. 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).

Further, it is well established that arguments not presented to the trial court will not be

considered in a petition for writ of mandamus. In re Am. Optical Corp., 988 S.W.2d 711,

714 (Tex. 1998) (orig. proceeding). Finally, in determining the propriety of mandamus

relief, appellate courts may not deal with disputed areas of fact. In re Pirelli Tire, L.L.C.,

247 S.W.3d 670, 676 (Tex. 2007) (orig. proceeding); In re Angelini, 186 S.W.3d 558,

560 (Tex. 2006) (orig. proceeding).

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

mandamus and the motion for emergency relief, is of the opinion that relator has not

shown herself entitled to the relief sought under the foregoing standard of review. The

record and appendix presented do not contain any of relator’s pleadings in the

underlying suit.   The record further does not contain the reporter’s record of the

underlying hearing, and while the petition for writ of mandamus meets the requirements

of the appellate rules insofar as it states that no testimony was adduced at the hearing,

the order at issue is expressly based on the “arguments of counsel.” Based on the

record presented, we are unable to conclude that the trial court erred in issuing the

temporary order at issue. Accordingly, the petition for writ of mandamus and motion for

emergency relief are DENIED. See TEX. R. APP. P. 52.8(a).

                                                                 PER CURIAM

Delivered and filed the
18th day of October, 2013.




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