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in Re Adoun Phommivong, Relator
560 S.W.3d 280
| Tex. App. | 2016
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Background

  • Relator Adoun Phommivong filed a petition for writ of mandamus asking the trial judge (Hon. Ana Estevez) to hold a hearing and resolve alleged inaccuracies in the reporter’s record.
  • Phommivong also sought a writ of prohibition to prevent the trial court from proceeding to trial in a related criminal proceeding (Motion to Adjudicate Guilt).
  • Phommivong’s filings did not cite any legal authority supporting entitlement to mandamus or prohibition relief.
  • The court treated failure to cite authority and analyze legal issues as a waiver of the complaints.
  • The court declined to perform an independent review of the record or law to find a clear abuse of discretion.
  • The court denied both the petition for mandamus and the request for prohibition.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Mandamus to compel hearing on motion to correct reporter’s record Judge refused to hold a hearing; no adequate appellate remedy, so mandamus appropriate Implied: no entitlement shown; respondent discretion; ordinary appeal adequate Denied — relator waived argument by failing to cite authority and did not show entitlement
Prohibition to bar trial proceedings in related criminal case Any trial would interfere with this Court’s jurisdiction and prevent determination of reporter’s-record inaccuracies Implied: proceeding in separate criminal cause does not prevent correction of reporter’s record; no authority shown Denied — relator waived argument and did not explain how trial would bar relief
Waiver for failure to cite legal authority Relator argued in substance but provided no supporting authorities Respondent relied on appellate rules and precedent holding failure to cite is waiver Held that failure to cite authority and analyze law results in waiver; petition denied
Requirement to show clear abuse of discretion unavailable on appeal Relator contended mandamus appropriate because no other remedy exists Court: petitioner must show clear abuse; court will not independently research law to find such abuse Denied — relator failed to establish clear abuse that could not be remedied on appeal

Key Cases Cited

  • In re Estate of Taylor, 305 S.W.3d 829 (Tex. App.—Texarkana 2010, no pet.) (failure to cite authority or analyze issues results in waiver)
  • Kang v. Hyundai Corp. (U.S.A.), 992 S.W.2d 499 (Tex. App.—Dallas 1999, no pet.) (failure to cite authority constitutes waiver)
  • Valadez v. Avitia, 238 S.W.3d 843 (Tex. App.—El Paso 2007, no pet.) (appellate court will not independently review record and law to find clear abuse of discretion)
Read the full case

Case Details

Case Name: in Re Adoun Phommivong, Relator
Court Name: Court of Appeals of Texas
Date Published: Aug 17, 2016
Citation: 560 S.W.3d 280
Docket Number: 07-16-00298-CV
Court Abbreviation: Tex. App.