In Re William Levi Oliver v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 29, 2023
• Docket: 03-23-00767-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00767-CV

In re William Levi Oliver

ORIGINAL PROCEEDING FROM BELL COUNTY

MEMORANDUM OPINION

Relator has filed a petition for writ of mandamus complaining of the trial court’s

alleged failure to adjudicate an uncontested divorce petition that has been pending since April of

2023. He also alleges that he submitted a “Setting Request” to the trial court in September of

this year. He asks that we issue a writ of mandamus directing the trial court to adjudicate the

pending matter.

It is Relator’s burden to request and properly establish entitlement to mandamus

relief, including by providing this Court with a sufficient record from which to evaluate his

claims. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); In re Smith, No. 03-14-00478-CV,

2014 WL 4079922, at *2 (Tex. App.—Austin Aug. 13, 2014, orig. proceeding) (mem. op.)

(denying mandamus relief when relator failed to provide sufficient record); see also Tex. R. App.

P. 52.7(a) (requiring relator to file record containing sworn copies “of every document that is

material to [his] claim for relief and that was filed in any underlying proceeding”). To establish

an abuse of discretion for failure to rule, relator must show that: (1) the trial court had a legal duty to rule on his plea to the jurisdiction, (2) he made a demand for the trial court to rule, and

(3) the trial court failed or refused to rule within a reasonable time. See In re Chavez, 62 S.W.3d

225, 228 (Tex. App.—Amarillo 2001, orig. proceeding).

Relator has not provided us with a file-stamped copy of his original petition, the

“Setting Request” referred to above, or a motion for entry of decree with the agreed decree

attached. Thus, he has failed to show that a proper filing is pending before the trial court or that

the court is aware of the filing and has been asked to rule. See In re Sarkissian, 243 S.W.3d 860,

861 (Tex. App.—Waco 2008, orig. proceeding) (observing that mandamus record failed to

establish that relator requested ruling or called motion to trial court’s attention and that “mere

filing of a motion with a trial court clerk does not equate to a request that the trial court rule on

the motion”).

On this record, we conclude that relator has failed to show entitlement to

mandamus relief. Accordingly, his petition for writ of mandamus is denied. See Tex. R. App. P.

52.8(a).

__________________________________________ Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Kelly and Theofanis

Filed: November 29, 2023