in Re: Robert Troy McClure

Opinion

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

No. 06-13-00117-CV

IN RE: ROBERT TROY MCCLURE

Original Mandamus Proceeding

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION

Robert Troy McClure, an inmate proceeding pro se, has filed a petition for writ of

mandamus asking this Court to order the Honorable Bobby Lockhart, presiding judge of the

102nd Judicial District Court of Bowie County, Texas, to rule on several motions pending in his

court. McClure sued a number of prison officials alleging excessive force was used by prison

guards. McClure alleges that since the lawsuit was reinstated almost a year ago by order of this

Court, 1 the trial court has refused to rule on his motions and is attempting to have him certified

as a vexatious litigant. McClure does not complain about the alleged attempt to have McClure

certified as a vexatious litigant but only complains about the trial court’s refusal to rule on his

motions. 2 McClure requested an order from the trial court permitting him to (1) file subpoenas,

(2) add parties, (3) have the sheriff serve citations, (4) be free from restraints at his vexatious

litigant hearing, and (5) have the sheriff serve subpoenas to fact witnesses.

Mandamus issues only when the mandamus 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 Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial

court clearly abuses its discretion when it reaches a decision “so arbitrary and unreasonable it

amounts to a clear and prejudicial error of law or it clearly fails to correctly analyze or apply the

1 McClure v. State, No. 06-12-00075-CV, 2012 Tex. App. LEXIS 10554 (Tex. App.—Texarkana Dec. 20, 2012, no pet.) (mem op.) (trial court erred in dismissing because McClure’s claims have arguable basis in law). 2 A trial court generally has a ministerial duty to rule on all pending motions within a reasonable time. In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding). 2 law.” In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig. proceeding). To

determine whether a party has an adequate remedy by appeal, we apply a balancing test. See

Prudential, 148 S.W.3d at 136; In re AIU Ins. Co., 148 S.W.3d 109, 115 (Tex. 2004) (orig.

proceeding). Under this test, a remedy available on direct appeal is adequate when the

detriments of mandamus review outweigh the benefits. Prudential, 148 S.W.3d at 136.

McClure has failed to provide this Court with a sufficient record. It is the relator’s

burden to provide this Court with a sufficient record 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. While McClure attached a letter

requesting a ruling on the above motions, McClure failed to attach certified or sworn copies of

the motions themselves. While the petition does contain an appendix, the appendix does not

include “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). We cannot grant mandamus relief

without certified or sworn copies of the motions complained of.

For the reasons stated, we deny McClure’s petition.

Jack Carter Justice

Date Submitted: November 18, 2013 Date Decided: November 19, 2013