Pеnding before the court is the petition for writ of mandamus filed by Dwain Kuh-ler. The latter seeks an order directing the Honorable Paula Lanehart, County Court at Law No. 3, Lubbock County, to afford him 1) a jury trial upon the issue of whether a temрorary guardian should be appointed over the person of Hilda Frances Kuhler and 2) due process. So too does he request that we declare the temporary guardianship laws unconstitutional. For the reаsons which follow, we deny the writ.
Jury Trial
Section 21 of the Probate Code states that in “all contested probate and mental illness proceedings ... the parties shall be entitled to trial by jury as in other civil actions.” It is this provision which Kuhler believes entitled him to a jury trial. However, statute pertaining to the appointment of a temporary guardian de- *383 dares that the court shall appoint same if after conducting a hearing under § 875(f)(1) “the court determines that thе applicant has established” the requisite grounds. Tex. PROB.Code Ann. § 875(g) (Vernon Supp.2001) (emphasis added). Nowhere in either § 875(g) or any other part of § 875 did the legislature mention the right to a trial by jury. Again, it directed the “court” to assess whether thе prerequisites for such an appointment have been met. And, to the extent that it used the word “court” and because we must assign words in a statute their plain meaning, see Tex. Gov’t.Code Ann., § 312.002(a) & (b), one cannot reasonably argue that he has a right to hаve a jury decide same.
Simply put, while § 21 of the Probate Code deals with the resolution of contested issues in general, § 875 specifically controls the appointment of an interim or temporary guardian. And, where there may be an apparent conflict between the two provisions, the statute dealing with the specific topic controls over the other.
See Holmes v. Morales,
Finally, our holding comports not only with authority applicable to analogous situations but also § 21 of the Probate Code. As to the former, it is clear that one has no right to have a jury determine whether a temporary injunction should issue.
Loomis Intern’l Inc. v. Rathburn,
And, as to our decision’s comportment with § 21, it must be remembered that the provision entitles one to a jury “as in other civil actions.” Given that juries are unavailable when interlocutory relief is sought in other civil actions (such as one for injunctive relief), they are unavailable *384 here as well. So, our holding comports with § 21.
Constitutionality of the Temporary Guardianship Statutes
Mandamus will issue only if 1) the trial court clearly abused its discretion or violated a duty imposed by law and 2) the complainant has no adequate legal remedy.
In re Daisy Mfg. Co.,
Furthermore, one seeking mandamus relief must provide the court with clear and concise argument for the contentions made with citation to authority and the record or appendix. Tex.R.Aрp. Peoc. 52.3(h). This duty entails more than proffering mere conclusions. Rather, the relator must provide substantive analysis or discussion of the facts and authorities relied upon,
Howell v. Murray Mortgage Co.,
Nor do we consider the quotation of an excerpt from Krause as adequate substitute for suсh missing analysis. This is so because the allusion, in Krause, to the constitutionality of temporary guardian-ships was clearly dicta and that dicta related to sections of the Probate Code other than § 875. Having failed to address the cоnstitutional status of temporary guard-ianships after the 1993 enactment of § 875 (the provision under which the trial court at bar acted), the dicta recited in Krause and relied upon by Kuhler is of little use at bar. 1
In short, Kuhler provided neither argument nor applicable authority illustrating why tеmporary guardianships authorized by § 875 of the Probate Code were unconstitutional. Consequently, he failed to comply with Rule 52.3(h) and waived the contention.
Due Process
As previously mentioned, mandamus can issue only when a clear abuse of discretion has occurred and the applicant lacks adequate legal remedy.
In re Daisy Mfg. Co., supra.
Moreover, the burden lies with the relator or applicant to satisfy both elements.
In re Carter,
Second, rule of procedure obligates an applicant for writ of mandamus to verify all factual allegations contained in his petition. Tex.R.Apр. PROC. 52.3. The petition of Kuhler is replete with factual allegations, not the least of which is that the trial court conducted no evidentiary hearing before confirming its prior appointment of a temporary guardian. 2 Nor did Kuhler attach a transcription of the hearing which Kuh-ler indicates was convened by the court before issuing the order in dispute. Had such a transcription been provided, we could have overlooked the failure to vеrify the petition and assessed the accuracy of the factual allegations. Yet, without either, we have no competent evidence supporting his allegations. In short, it appears that something happеned at the hearing from which this mandamus arose. And, before we can determine whether what transpired effectively denied anyone due process, we would have to know what process, if any, was given. Without a transcriрtion of the hearing for us to peruse or comparable, probative evidence illustrating what happened, we can hardly conclude that what occurred at the hearing resulted in the deprivation of any duе process to which Kuhler may have been entitled.
Third, it is well settled that before one is entitled to due process, he must have a property right or liberty interest subject to loss or injury.
University of Texas Medical School v. Than,
For the foregoing reаsons, we deny the petition for writ of mandamus.
Notes
. We view the comments in Krause regarding the constitutionality of temporary guardian-ships as dicta because the appellate panel there held that it had no jurisdiction to entertain the appеal. And, to the extent that it had no jurisdiction over the appeal, it surely had no jurisdiction to substantively comment upon anything other than jurisdiction.
. While Kuhler suggests that those seeking the appointment of the temporary guardian presented no evidence at the hearing supporting their claim, he nevertheless states that the court heard from “one unsworn witness.” So too does he state that he "presented a Declaration of Guardianshiр to the [trial] [c]ourt.” To the extent that information or documentation was presented to the trial court for its consideration, it would be imperative for Kuhler to present us with a transcription of the hearing at which that infоrmation was offered. “[I]n determining whether mandamus should issue, we cannot plumb the subjective reasoning of the trial court. We must focus on the record that was before the court and whether the decision was not only arbitrary but also amounted ‘to a clear and prejudicial error of law.’"
In re Bristol-Myers Squibb Co.,
. The failure to discuss the existence of a right or interest is of particular import here given that § 875 speaks of according the respondent or potential ward the opportunity to receive prior notice of the hearing, legal representation, opportunity to present evidence and confront witnesses, and the opportunity to close the proceedings. Tex Prob.Code Ann. § 875(f)(1) (Vernon Supp.2001). In creating this distinct interlocutory procedure the legislature said nothing of affording third-parties over whom a temporary guardian was being appointed opportunity to appear and dispute the application. And, while we do not hold that such third-parties cannot intervene, Kuh-ler's addressing that issue was imperative since one of the opposing parties argued in its brief that he had no such right.