in Re Jason David Sheedy

• Court: Court of Appeals of Texas
• Decided: September 21, 2021
• Docket: 01-21-00476-CV
• Status: Published

Opinion

Opinion issued September 21, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-21-00476-CV ——————————— IN RE JASON DAVID SHEEDY, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Jason David Sheedy, incarcerated and proceeding pro se, has filed a

petition for writ of mandamus, asserting that the trial court has failed to perform its

ministerial duty to rule on his “cause[s] of action and motions.” Relator’s mandamus

petition requests that we direct the trial court to “rule on all pending filings and

motions.” We deny relator’s petition for writ of mandamus.1

Mandamus is an extraordinary remedy that is only available in limited

circumstances. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). To be

entitled to mandamus relief, the relator must show both that the trial court abused its

discretion and that there is no adequate remedy by appeal. See In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). In a mandamus proceeding, the

relator has the burden to provide this Court “with a sufficient record to establish [his]

right to mandamus relief.” Walker, 827 S.W.2d at 837.

Relator has provided an appendix along with his mandamus petition

including, among other items: (1) a file-stamped copy of relator’s original petition,

(2) a February 12, 2021 letter to the Fort Bend County District Clerk enclosing a

“Motion for Entry and Judgment for Default Judgment,” (3) a March 15, 2021 letter

to the Fort Bend County District Clerk enclosing an “Order for Entry of Immediate

Injunctive Relief,” (5) a June 30, 2021 letter to the Fort Bend County District Clerk

enclosing relator’s “First Motion for Leave to Amend Petition,” and (7) a June 30,

2021 letter to the Fort Bend County District Clerk enclosing relator’s “First

Amended Petition.” Of the documents included in relator’s mandamus appendix,

1 The underlying case is Jason David Sheedy v. Bruce Fredrick, Cynthia Tilley, and “John/Jane Doe,” Cause No. 20-DCV-277933, in the 458th District Court of Fort Bend County, Texas, the Honorable Robert Rolnick presiding.

2 only the original petition is affixed with a file-stamp from the Fort Bend County

District Clerk.

In his mandamus petition, relator asserts that he is entitled to mandamus relief

because the trial court failed to perform its ministerial duty by “refus[ing] to

complete a mandatory duty . . . and [taking] absolutely no actions or [making any]

rulings regarding properly, timely filed cause[s] of action and motions.” An act is

ministerial in nature when it can be accomplished without the exercise of judgment

or discretion. See Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.

1991). “[A]dmittedly, the need to consider and rule upon a motion is not a

discretionary act.” In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2002,

orig. proceeding). When a motion has been properly filed and brought to the

attention of the trial court, the act of considering and ruling upon the motion is

ministerial in nature, and mandamus may issue to compel the trial court to act. See

In re Layton, 257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding).

However, the burden to establish that a particular motion was properly filed

and brought to the attention of the trial court lies with relator.2 See In re Villarreal,

2 Additionally, the Texas Rules of Appellate Procedure require a petition for writ of mandamus to be accompanied by an appendix including “a certified or sworn copy of any order complained of, or any other document showing the matter complained of.” See TEX. R. APP. P. 52.3(k)(1)(A); see also TEX. R. APP. P. 52.7(a)(1) (“Relator must file with the petition a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding.”).

3 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding) (relator must

“illustrate that the district court received and was aware of” pleadings at issue); see

also In re Johnson, 07-13-00259-CV, 2014 WL 1285661, at *1 (Tex. App.—

Amarillo Mar. 28, 2014, orig. proceeding) (mem. op.) (relator’s burden to “bring

forward all that is necessary to establish a claim for relief”).

Nothing in the mandamus record suggests that motions at issue in relator’s

petition for writ of mandamus were filed or otherwise brought to the attention of the

trial court. Thus, while the act relator seeks to compel in this case, holding a hearing

and otherwise considering motions, is ministerial in nature, he is not entitled to

mandamus relief. See In re Chavez, 62 S.W.3d at 228 (“And, because the state of

the record prevents us from holding that the trial court was aware of the motion, we

cannot say that the court abused its discretion in allegedly failing to act on same.”);

see also In re Johnson, 2014 WL 1285661, at *1 (“Absent a sufficient record,

mandamus will not issue.”).

Further, even assuming the motions at issue here were properly filed and

brought to the attention of the trial court, relator would not be entitled to mandamus

relief, as the mandamus record does not include any evidence that relator took any

steps to effectuate service of his original petition. Relator, “as the party requesting

service of process, has the responsibility for ensuring that service is properly

accomplished.” See In re Reger, No. 03-16-00120-CV, 2016 WL 1407698, at *1

4 (Tex. App.—Austin Apr. 5, 2016, orig. proceeding) (mem. op.). Based on this

failure alone, relator’s mandamus petition should be denied. See id. (“In the absence

of returns of service showing that process was served on the defendants, the [trial]

court has no ministerial duty to hear [relator’s] motions.”).

Accordingly, we deny relator’s petition for writ of mandamus. All pending

motions are dismissed as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.