Court of Appeals of Texas, Twelfth District, Tyler
IN RE: ROBERT WIGHTMAN-CERVANTES, RELATOR ROBERT WIGHTMAN-CERVANTES, Relator
HON. HAROLD C. GAITHER, JR
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Wightman-Cervantes seeks mandamus relief from the trial
court's order appointing a temporary
guardian. We deny the petition.
underlying case involves an application for guardianship
concerning Clinton Allen Wightman, Relator's
half-brother. On April 6, 2017, Wightman's guardian ad
litem filed an emergency application for appointment of a
temporary guardian of the person and estate of Wightman. A
hearing was held the following day. Both Wightman's
guardian ad litem and attorney ad litem were present, as well
as the proposed temporary guardian, Terry J. Napper. Relator
appeared by telephone. The court expressed concern for
Wightman's immediate well-being, and appointed Napper as
his temporary guardian.
initially objected on grounds that Napper was not related to
Wightman, but he later agreed to Napper's appointment as
temporary guardian. The court indicated it would be entering
an order appointing Napper as the temporary guardian. Relator
told the court that he would communicate with Napper for the
purpose of exchanging information, but indicated that he
would respect Napper's decisions and would not try to
unduly interfere with Napper's decision making.
court signed a written order appointing Napper as
Wightman's temporary guardian. The order required all
criticisms or complaints regarding Napper be directed to the
court and prohibited parties from communicating with Napper
in a threatening or harassing manner. Thereafter, Relator
engaged in a series of emails with Napper which Napper
asserts violate the court's order. Napper filed a motion
for Relator to show cause for why he is not in contempt of
court. This original proceeding followed.
Appointing Temporary Guardian
issues, Relator argues the trial court abused its discretion
because the temporary order (1) contains a gag order that
violates his constitutional right to freedom of speech, and
(2) was issued ex parte.
is an extraordinary remedy, available only when the trial
court has clearly abused its discretion and no adequate
remedy by appeal exists. In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 135-37 (Tex. 2004) (orig.
proceeding). A clear abuse of discretion occurs when a trial
court "reaches a decision so arbitrary and unreasonable
as to amount to a clear and prejudicial error of law."
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)
(orig. proceeding). A trial court has no discretion in
determining what the law is or applying the law to the facts.
Id. at 840. Therefore, a clear failure by the trial
court to analyze or apply the law correctly will constitute
an abuse of discretion, and may result in appellate reversal
by extraordinary writ. Id.
has the burden to establish both prerequisites to mandamus.
See In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933,
935 (Tex. App.-Tyler 2005, no pet.). Mandamus is the proper
remedy for challenging a gag order. In re Benton,
238 S.W.3d 587, 592 (Tex. App.-Houston [14th Dist.] 2007,
orig. proceeding). Thus, we proceed to review the trial
court's order for abuse of discretion.