in Re Richard Owen Taylor

• Court: Court of Appeals of Texas
• Decided: April 12, 2016
• Docket: 06-16-00016-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-16-00016-CV

IN RE: RICHARD OWEN TAYLOR

Original Mandamus Proceeding

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION Richard Owen Taylor, proceeding pro se, has filed a petition for writ of mandamus asking

this Court to direct the Honorable Leon F. Pesek, Jr., to rule on his motion for rulings on discovery

objections and claims of privilege and on his request for a teleconference appearance.

In his petition for writ of mandamus, Taylor states his motions were filed in the trial court

on June 24, 2015. Taylor also alleges that he sent letters to Respondent on September 18, 2015,

and October 12, 2015, seeking to have his motions set for hearing. He also alleges the trial court

has neither set his motions for hearing nor ruled on the motions. He, therefore, requests that this

Court order the Respondent to set his motions for hearing and rule on them.

Mandamus relief will be granted only when the record establishes (1) a clear abuse of

discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate

remedy at law. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding); see

In re Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex. 2009) (orig.

proceeding). The relator must provide this Court with a record sufficient to establish the right to

mandamus relief. Walker, 827 S.W.2d at 837; In re Pilgrim’s Pride Corp., 187 S.W.3d 197, 198–

99 (Tex. App.—Texarkana 2006, orig. proceeding); see TEX. R. APP. P. 52.3.

Consideration of a motion that is properly filed and before the court is a ministerial act.

State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding).

However, Taylor must show that the trial court received, was aware of, and was asked to rule on

the motion. In re Grulkey, No. 14-10-00450-CV, 2010 WL 2171408, at *1 (Tex. App.—Houston

[14th Dist.] May 28, 2010, orig. proceeding) (mem.op.) (per curiam) (citing In re Villarreal, 96 2 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding)); see also In re Blakeney, 254

S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding) (“Showing that a motion was

filed with the court clerk does not constitute proof that the motion was brought to the trial court’s

attention or presented to the trial court with a request for a ruling.”). Although Taylor has provided

this Court with copies of his motions and letters, none of them contain a file-stamp mark indicating

they were filed. Further, neither the motions nor the letters are accompanied by envelopes or other

evidence in the record that indicate the trial court actually received the motions and requests for

hearing.

Since Taylor cannot meet his burden to demonstrate the trial court received, was aware of,

and was asked to rule on his pleadings, we must deny his petition for writ of mandamus.

Bailey C. Moseley Justice

Date Submitted: April 11, 2016 Date Decided: April 12, 2016