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Appealing Temporary Orders

The general rule is that only a final order can be appealed.  However, the Texas Rules of Appellate Procedure, as well as the Texas Family Code, permits a temporary order to be brought before the appellate court through a Petition for Writ of Mandamus.  It is understood that temporary orders, especially in family law cases, may have an immediate, yet negative, impact on children and/or the marital estate.  Recall that the trial court routinely issues temporary orders concerning the access and possession and rights and duties as related to the child pending the divorce.  Additionally, the trial court makes temporary orders regarding the assets and liabilities of the marital estate.  Assuming that it will take a few months, if not more, to trial on the matter at final hearing, the damage that can occur can be long lasting.  Thus, Texas law creates a vehicle for the appellate court to examine a trial judge's decision concerning temporary orders.

Please note that mandamus relief examines essentially two issues: 1) Was the trial judge's decision an abuse of discretion because it was arbitrary, capricious, and unsupported by sound law; or 2) Did the trial judge fail to carry out a ministerial duty as created by statute.  Most mandamus cases allege an abuse of discretion standard; however, this is a very difficult burden for the appellate to overcome:  There are numerous appellate opinions that read that the appellate judges would have done something different if they were the trial judge; nevertheless, the appellate court was not going to disturb the trial court's judgment because of the great latitude and discretion given to the trial court.