in Re Vincent Franzeskos

Petition for Writ of Mandamus Denied and Memorandum Opinion filed November 6, 2015.

In The

Fourteenth Court of Appeals

NO. 14-15-00943-CV

IN RE VINCENT FRANZESKOS, Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS 246th District Court Harris County, Texas Trial Court Cause No. 2004-68975

MEMORANDUM OPINION

On November 5, 2015, relator Vincent Franzeskos filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Charley Prine, presiding judge of the 246th District Court of Harris County, to

vacate his denial of and grant relator’s motion for judgment nunc pro tunc of an order that modified the child possession provisions of a final divorce decree.

Relator has not satisfied his burden to demonstrate his entitlement to the extraordinary relief of a writ of mandamus. See In re State Bar of Tex., 113 S.W.3d 730, 733 (Tex. 2003) (orig. proceeding) (“‘Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.’” (quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)) (emphasis added). Relator may file a motion to modify the possession order. See Tex. Fam. Code Ann. § 156.101. Thus, he has an adequate remedy at law. See In re Hernandez, 14-13-01038-CV, 2014 WL 6854621, at *1 (Tex. App.—Houston [14th Dist.] Dec. 4, 2014, orig. proceeding).

Additionally, the record for a petition for writ of mandamus must contain either a written order from the trial court or a reporter’s record of the trial court’s oral order denying a motion for relief. See In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 316 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). In this case, relator has not provided either a written order or a reporter’s record showing that the trial court denied his motion for judgment nunc pro tunc. Relator has only provided an affidavit of his attorney that the trial court denied the motion. An affidavit may not serve as a substitute for the official record. See In re Whitney, 14- 13-00999-CV, 2013 WL 6157121, at *1 (Tex. App.—Houston [14th Dist.] Nov. 21, 2013, orig. proceeding) (citing Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 384–85, 110 S.W.2d 561, 566 (1937); Res. Health Servs., Inc. v. Acucare

Health Strategies, Inc., No. 14–06–00846–CV, 2007 WL 4200587, at *1 (Tex. App.—Houston [14th Dist.] Nov. 29, 2007, no pet.) (mem. op.).

Accordingly, we deny relator’s petition for writ of mandamus because: (1) he has an adequate remedy at law, and (2) he has not provided this court with an adequate record.

Relator also filed a motion for emergency stay. Because we deny the petition, we also deny the motion for emergency stay.

PER CURIAM

Panel consists of Justices Boyce, Busby, and Brown.