PETER CURRY v. THE STATE OF TEXAS--Appeal from 214th District Court of Nueces County

State: Texas

Docket No: 13-09-00518-CR

Case Date: 12/21/2010

Plaintiff: PETER CURRY

Defendant: THE STATE OF TEXAS--Appeal from 214th District Court of Nueces County

Preview:In re Carlos Penichet--Appeal from 45th Judicial District Court of Bexar County
MEMORANDUM OPINION

No. 04-06-00087-CV IN RE Carlos PENICHET Original Mandamus Proceeding (1)

PER CURIAM Sitting: Catherine Stone , Justice Sandee Bryan Marion , Justice Rebecca Simmons , Justice Delivered and Filed: March 1, 2006 MOTION FOR TEMPORARY RELIEF DISMISSED FOR LACK OF JURISDICTION On February 10, 2006, Carlos Penichet filed a motion for temporary relief seeking to stay certain proceedings in the trial court pursuant to Rule 52.10 of the Texas Rules of Appellate Procedure. Although the motion recites a petition for a writ of mandamus was filed concurrently with the motion, Penichet did not file a petition. Rule 52.10 allows a relator to seek temporary relief "pending the court's action" on a petition. Tex. R. App. P. 52.10. Implicit in Rule 52.10 is the necessity for a petition to be filed before our court can grant temporary relief. See id. At this point, there is no controversy before the court. Accordingly, Penichet's motion for temporary relief is dismissed for lack of jurisdiction without prejudice to refile it if and when a petition actually is filed with the court. PER CURIAM 1. This proceeding arises out of Cause No. 2004-CI-13437 , styled Carlos Penichet v. Carmelo Otero, pending in the 45th Judicial District Court, Bexar County, Texas.

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