in Re Michael Scott

• Court: Court of Appeals of Texas
• Decided: October 1, 2018
• Docket: 13-18-00542-CV
• Status: Published

Opinion

NUMBER 13-18-00542-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

IN RE MICHAEL SCOTT ____________________________________________________________

On Petition for Writ of Mandamus. ____________________________________________________________

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Benavides Memorandum Opinion by Justice Rodriguez1

Relator Michael Scott, proceeding pro se, filed a petition for writ of mandamus in

the above cause on September 28, 2018. 2 Through this original proceeding, relator

seeks to compel the trial court to (1) rule on relator’s motion for a settlement hearing in

1 See TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions); id. R. 52.8(d) (“When granting relief, the court must hand down an opinion as in any other case,” but when “denying relief, the court may hand down an opinion but is not required to do so.”).

2 Relator also filed a motion requesting leave of Court to file the petition for writ of mandamus.

The Texas Rules of Appellate Procedure no longer require the relator to file a motion for leave to file an original proceeding. See generally TEX. R. APP. P. 52 & cmt. Accordingly, we dismiss relator’s motion as moot. the underlying personal injury lawsuit, and (2) issue a bench warrant to enable relator’s

presence at the hearing.

Mandamus relief is proper to correct a clear abuse of discretion when there is no

adequate remedy by appeal. In re Frank Motor Co., 361 S.W.3d 628, 630–31 (Tex.

2012) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.

2004) (orig. proceeding). We assess the adequacy of an appellate remedy by balancing

the benefits of mandamus review against the detriments. In re State, 355 S.W.3d 611,

614–15 (Tex. 2011) (orig. proceeding); In re Team Rocket, L.P., 256 S.W.3d 257, 262

(Tex. 2008) (orig. proceeding). The relator bears the burden of providing this Court with

a sufficient record to establish the right to mandamus relief. Walker v. Packer, 827

S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); see In re Athans, 458 S.W.3d 675, 676

(Tex. App.—Houston [14th Dist.] 2015, orig. proceeding). The appendix and record for

an original proceeding must contain the documents specified by the appellate rules. See

TEX. R. APP. P. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a)

(specifying the required contents for the record).

To obtain mandamus relief for a trial court’s refusal to act, the relator must establish

that the trial court had a legal duty to perform a ministerial act, the relator demanded

performance, and the trial court refused to perform. Stoner v. Massey, 586 S.W.2d 843,

846 (Tex. 1979) (orig. proceeding). Consideration of a motion that is properly filed and

before the trial court is a ministerial act, and mandamus may issue to compel the trial

court to act. See Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig.

proceeding); In re Huang, 491 S.W.3d 383, 385–86 (Tex. App.—Houston [1st Dist.] 2016,

orig. proceeding); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008,

2 orig. proceeding). To obtain mandamus relief for the trial court’s refusal to rule on a

motion, a relator must establish: (1) the motion was properly filed and has been pending

for a reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial

court refused to rule. In re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.]

2017, orig. proceeding); In re Tex. Parks & Wildlife Dep’t, 483 S.W.3d 795, 797 (Tex.

App.—El Paso 2016, orig. proceeding); In re Layton, 257 S.W.3d 794, 795 (Tex. App.–

Amarillo 2008, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San

Antonio 2004, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo

2003, orig. proceeding).

The Court, having examined and fully considered the petition for writ of mandamus

and the applicable law, is of the opinion that the relator has not shown himself entitled to

the relief sought. In this case, the relator has failed to provide an appendix or record in

support of his request for mandamus relief. See Walker, 827 S.W.2d at 837; see

generally TEX. R. APP. P. 52.3. Accordingly, the petition for writ of mandamus is DENIED.

NELDA V. RODRIGUEZ Justice

Delivered and filed the 1st day of October, 2018.