in Re Kenneth Webb, Relator

• Court: Court of Appeals of Texas
• Decided: July 31, 2014
• Docket: 07-14-00256-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-14-00256-CV

IN RE KENNETH WEBB, RELATOR

ORIGINAL PROCEEDING

July 31, 2014

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Relator Kenneth G. Webb, appearing pro se, seeks a writ of mandamus

compelling the Honorable William D. Smith, presiding judge of the 84th District Court of

Hansford County, to rule on “all motions that have been filed in case #CV 04982 since”

March 19, 2009. According to relator’s petition, the underlying case is a probate

proceeding.

Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone

Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). To be entitled to relief

by mandamus, the relator must show the trial court clearly abused its discretion, and

that the relator has no adequate remedy by appeal. In re Ford Motor Co., 988 S.W.2d

714, 718 (Tex. 1998) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992) (orig. proceeding). The burden to demonstrate entitlement to mandamus

relief is on the relator. See Walker, 827 S.W.2d at 837. This includes providing an

adequate record to substantiate the allegations contained in the petition for writ of

mandamus. See TEX. R. APP. P. 52.7; Dallas Morning News v. Fifth Court of Appeals,

842 S.W.2d 655, 658 (Tex. 1992) (orig. proceeding).

We will deny relator’s petition. The petition does not comply with the form and

contents requirements for a petition in an original proceeding, as specified by the rules

governing such proceedings. See TEX. R. APP. P. 52.3 (setting out required contents of

petition). Most significantly, the petition is not accompanied by an appendix or record.

Nothing relator has submitted substantiates the allegations contained in his petition.

See also TEX. R. APP. P. 52.3(j) (requiring person filing petition to certify that factual

statements in petition are supported by “competent evidence included in the appendix

or record”). Without an adequate record, relator is wholly unable to prove that Judge

Smith has abused his discretion if indeed he has not ruled on all pending motions.

Because relator has thus failed to demonstrate an abuse of discretion by the trial

court, his petition for writ of mandamus must be, and is, denied.

James T. Campbell Justice