In re Van Dyke (Tex.App.- Houston [14th Dist.] Oct. 20, 2009)(per curiam denial)
(mandamus re discovery order denied, request moot, turnover order is appealable, hence no mandamus)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00822-CV In Re Scott Van Dyke
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland
M E M O R A N D U M O P I N I O N
On September 25, 2009, relator filed a petition for writ of mandamus in this court. See Tex. Gov’t Code
Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator asked this court to
compel the Honorable Jaclanel McFarland, presiding judge of the 133rd District Court of Harris County, to
set aside her ruling granting a motion to compel full and complete deposition answers.
Relator has not established that he is entitled to mandamus relief. Respondent’s order granting the motion
to compel deposition answers was signed September 21, 2009. By its terms, the order required the
deposition to take place no later than seven business days after the signing of the order. Relator filed a
motion to stay the deposition, which this court denied. Because the time for taking the deposition has
passed, the order from which relator seeks relief is moot. Accordingly, we deny relator’s petition for writ of
mandamus with regard to the September 21, 2009, order compelling him to answer certain deposition
On September 30, 2009, relator supplemented the petition for writ of mandamus asking this court to compel
respondent to vacate a turnover order. On September 25, 2009, respondent issued a turnover order
requiring relator to pay *118,540.38 into the registry of the court. This amount represents the remaining
balance on a final judgment issued against relator.
Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law
where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
Because mandamus is an extraordinary remedy, we may not issue mandamus to vacate a trial court’s order
when there is an adequate remedy at law, such as an appeal. See Canadian Helicopters, Ltd. v. Wittig,
876 S.W.2d 304, 306 (Tex. 1994); Walker, 827 S.W.2d at 839–40.
A turnover order is an appealable order for which mandamus relief does not lie. Schultz v. Fifth Judicial
Dist. Ct. of Appeals, 810 S.W.2d 738, 740 (Tex. 1991), abrogated on other grounds by In re Sheshtawy,
154 S.W.3d 114 (Tex. 2004). Accordingly, we deny relator’s petition for writ of mandamus with regard to
the turnover order signed September 25, 2009.
Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.