I want to file an Original Proceeding regarding Petition for Writ of Mandamus with the 14th Appellate Court, but the Texas Rules of Appellate Procedure are not clear as to whether a Notice of Appeal, or Permission to Appeal is required. I am complaining about a Family Interlocutory Order, so really Interlocutory Appeals (which do require a Notice of Appeal) are not allowed by the Texas Family Code. Instead I have to Petition for Writ of Mandamus, but I do not know if such petition requires a "Notice of Writ" or "Notice of Appeal" or whatever it would be called, to the lower trial court.
Dear ?,
The usual procedure with discretionary, prerogative writs, such as mandamus is, because you have no right to appellate review before a final judgment, that you simply file a copy of your petition with the trial court and this gives it notice you are pursuing the writ. If you do not already understand, then you should know that the appeals court can summarily deny your mandamus petition without reaching the merits of it. That is, you are not entitled to a hearing on your petition.
You should also understand the filing of your petition does not stop anything going on in the trial court. If you want to stay the proceedings in the trial court, you must first ask that court for a stay pending the disposition of your mandamus petition by the appellate court. If the trial court denies the stay (practically a certainty) then you can ask the appellate court for a stay.
So, you can see why securing relief from the appeals court via mandamus is one of the most difficult, and rarest, things in the law. If you don't have counsel for this, you can pretty much count on your petition being denied. You can download an informative primer on writs in Texas if you go to:
http://www.tex-app.org/articles/57988_01.pdf
If you want to find counsel, go to Find a Lawyer at the top of this page and look for a good Texas appeals attorney with writ experience.
Yours sincerely,
Tim Provis
Cal. Bar No. 104800
Wis. Bar No. 1020123
Member: U.S. Supreme Court Bar
A notice of appeal is not required for a writ of mandamus because it is an original proceeding, not an appeal. However, you really should consult with an experienced family attorney before filing this proceeding on your own, as it is a complicated area of the law, for attorneys as well as lay persons. There are several board certified civil appellate attorneys in the Houston area, and they can be found at the Texas Board of Legal Specialization's website. That link is attached.
