In Re: Marsana De Monserat v. the State of Texas

DENY and Opinion Filed August 9, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00466-CV

IN RE MARSANA DE MONSERAT, Relator

Original Proceeding from the Probate Court No. 1
Dallas County, Texas
Trial Court Cause No. PR-20-02296-1

MEMORANDUM OPINION
Before Justices Pedersen, III, Smith, and Garcia
Opinion by Justice Garcia
In this original proceeding, relator challenges the trial court’s order granting

a second motion for new trial. Specifically, relator seeks mandamus relief on the

grounds that (1) the trial court lacked plenary power to issue the order; (2) the trial

court failed to adequately specify its reasons for granting a new trial in its written

order as required by Texas law; and (3) the trial court’s reasons for granting a new

trial fail on the merits because they are unsupported by the law and record.1

1
Relator had previously filed a petition for writ of mandamus from the trial court’s order granting the
first motion for new trial. That first order was vacated after this Court conditionally granted mandamus
relief. See In re De Monserat, No. 05-23-01197-CV, 2024 WL 575852, at *3 (Tex. App.—Dallas Feb. 13,
2024, orig. proceeding) (mem. op.).
Entitlement to mandamus relief requires relator to show that the trial court

clearly abused its discretion and that she lacks an adequate remedy by appeal. In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).

After reviewing the petition and the record before us, we conclude that relator has

failed to demonstrate entitlement to mandamus relief. Contrary to relator’s

argument, we conclude that the trial court did not lack plenary power to grant the

second motion for new trial. The mandamus record also fails to show that relator

made a predicate request to the trial court to correct the alleged deficiencies in its

written order. See In re Eagleridge Operating, LLC, 642 S.W.3d 518, 525 (Tex.

2022) (orig. proceeding) (“Due to the extraordinary nature of the remedy, the right

to mandamus relief generally requires a predicate request for action by the

respondent, and the respondent's erroneous refusal to act.”). Based on the

circumstances here, we conclude that this is not one of those rare occasions where

the predicate requirement may be relaxed. See In re Perritt, 992 S.W.2d 444, 446

(Tex. 1999) (per curiam) (orig. proceeding) (explaining that predicate requirement

may be relaxed on rare occasions when circumstances confirm the request would be

futile and the refusal little more than a formality).

Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.

52.8(a).

/Dennise Garcia/
DENNISE GARCIA
240466F.P05 JUSTICE

–2–