in Re Thomas Michael Welvaert

• Court: Court of Appeals of Texas
• Decided: May 1, 2019
• Docket: 10-19-00131-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00131-CV

IN RE THOMAS MICHAEL WELVAERT

Original Proceeding

MEMORANDUM OPINION

In this original proceeding, Relator Thomas Michael Welvaert seeks to compel the

Judge of the County Court at Law No. 2 of Brazos County to respond to him that his

“Motion to Voluntary Termination [sic] of Parental Rights” has been filed and to rule on

the motion.1 Welvaert also mentions that he has not received any reply from the Brazos

County District Clerk.2

1 The petition for writ of mandamus has several procedural deficiencies. See TEX. R. APP. P. 52.3. It also lacks a proper proof of service; a copy of all documents presented to the Court must be served on all parties to the proceeding and must contain proof of service. Id. R. 9.5. Because of our disposition and to expedite it, however, we will implement Rule of Appellate Procedure 2 and suspend these rules in this proceeding. Id. R. 2.

2Texas Government Code section 25.0232(g) provides: “The district clerk serves as clerk of a county court at law in matters of concurrent jurisdiction with the district court, and the county clerk serves as clerk of a county court at law in all other cases.” TEX. GOV’T CODE ANN. § 25.0232(g). We begin by addressing Welvaert’s petition for writ of mandamus to the extent

that it seeks mandamus relief against the district clerk. We do not have jurisdiction to

issue a writ of mandamus against a district clerk unless necessary to enforce our

jurisdiction. In re Smith, 263 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2006, orig.

proceeding); see TEX. GOV’T CODE ANN. § 22.221. Welvaert has not shown that a writ of

mandamus directed to the district clerk is necessary to enforce our jurisdiction.

Therefore, we do not have jurisdiction to issue a writ of mandamus against the district

clerk. To the extent that Welvaert’s petition for writ of mandamus seeks relief against the

district clerk, it is thus dismissed for want of jurisdiction.

We now turn to that portion of Welvaert’s petition for writ of mandamus in which

Welvaert seeks to compel the trial court judge to respond to him that his “Motion to

Voluntary Termination [sic] of Parental Rights” has been filed and to rule on the motion.

To obtain mandamus relief, a relator must show both that the trial court has clearly

abused its discretion and that the relator has no adequate remedy by appeal. In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). Texas

Rule of Civil Procedure 21(a) states:

Filing and Service Required. Every pleading, plea, motion, or application to the court for an order, whether in the form of a motion, plea, or other form of request, unless presented during a hearing or trial, must be filed with the clerk of the court in writing, must state the grounds therefor, must set forth the relief or order sought, and at the same time a true copy must be served on all other parties, and must be noted on the docket.

TEX. R. CIV. P. 21(a). Texas Rule of Civil Procedure 74 further provides:

The filing of pleadings, other papers and exhibits as required by these rules shall be made by filing them with the clerk of the court, except

In re Welvaert Page 2 that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and time and forthwith transmit them to the office of the clerk.

Id. R. 74.

Here, the record indicates that because the district clerk had not responded and

confirmed the filing of several other documents that Welvaert had previously sent to him,

Welvaert decided not to file his “Motion to Voluntary Termination [sic] of Parental

Rights” with the district clerk. Instead, Welvaert mailed the motion directly to the trial

court judge on November 3, 2018, and requested that he “accept this motion and rule on

it.” Rule 74 states, however, that the judge may (not shall) permit papers to be filed with

him. Id. We therefore cannot conclude that the trial court judge clearly abused his

discretion by not responding to Welvaert that his “Motion to Voluntary Termination [sic]

of Parental Rights” had been filed.3

Moreover, because there is nothing in the record before this Court to establish that

Welvaert’s “Motion to Voluntary Termination [sic] of Parental Rights” has been properly

filed, we cannot conclude that the trial court judge clearly abused his discretion by not

ruling on the motion.

3 On the other hand,

[w]hen a district clerk refuses to accept a pleading for filing, the party should attempt to file the pleading directly with the district judge, explaining in a verified motion that the clerk refused to accept the pleading for filing. Should the district judge refuse to accept the pleading for filing, this Court would have jurisdiction under our mandamus power to direct the district judge to file the pleading.

In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig. proceeding) (citation and footnote omitted) (quoting In re Bernard, 993 S.W.2d 453, 455 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding) (O’Connor, J., concurring)). But here, Welvaert did not attempt to file his “Motion to Voluntary Termination [sic] of Parental Rights” with the district clerk.

In re Welvaert Page 3 Mandamus may issue to compel a trial court to rule on a motion which has been pending before the court for a reasonable period of time. See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex. App.—Waco 2003, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.— Houston [1st Dist.] 1992, orig. proceeding); see also In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). To obtain mandamus relief for such refusal, 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. See Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at 252; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; see also Shredder Co., 225 S.W.3d at 679. . . .

In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding).

Here, there is nothing in the record to establish that Welvaert’s “Motion to

Voluntary Termination [sic] of Parental Rights” has been properly filed. Welvaert bears

the burden of providing a sufficient record to establish his right to mandamus relief. See

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

In re Mullins, 10-09-00143-CV, 2009 WL 2959716, at *1 n.1 (Tex. App.—Waco Sept. 16,

2009, orig. proceeding) (mem. op.).

For these reasons, Welvaert’s petition for writ of mandamus is denied to the extent

it seeks to compel the trial court judge to respond to him that his “Motion to Voluntary

Termination [sic] of Parental Rights” has been filed and to rule on the motion.

REX D. DAVIS Justice

In re Welvaert Page 4 Before Chief Justice Gray, Justice Davis, and Justice Neill Petition dismissed in part and denied in part Opinion delivered and filed May 1, 2019 [OT06]

In re Welvaert Page 5