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In re Wightman-Cervantes

Court of Appeals of Texas, Twelfth District, Tyler

May 31, 2017

IN RE: ROBERT WIGHTMAN-CERVANTES, RELATOR ROBERT WIGHTMAN-CERVANTES, Relator
v.
HON. HAROLD C. GAITHER, JR

         ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Greg Neeley, Justice.

         Robert Wightman-Cervantes seeks mandamus relief from the trial court's order appointing a temporary guardian.[1] We deny the petition.

         Background

         The 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.

         Relator initially objected on grounds that Napper was not related to Wightman, but he later agreed to Napper's appointment as temporary guardian.[2] 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.

         The 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.

         Order Appointing Temporary Guardian

         In two 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.

         Prerequisites to Mandamus

         Mandamus 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.

         Relator 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.

         Free ...


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