law-mandamus-petitions-common-errors | requirement for mandamus relief in the court of appeals | mandamus standard |
common errors on appeal | |
discovery mandamus | mandamus vs. interlocutory appeal | mandamus standard |
common errors in mandamus petitions | mandamus petition requirements | mandamus against public official |
venue mandamus | mandamus based on trial court's failure to rule on motion |

COMMON DEFICIENCIES IN MANDAMUS PETITIONS, PROCEEDINGS - PITFALLS

EXEMPLARS

In re Keen Transport, Inc. (pdf) (Tex.App.- Houston [14th Dist.] Jan. 28, 2010)(per curiam denial)
MOTION OR WRIT DENIED: Per Curiam      
Before Justices Frost, Boyce and Sullivan    
14-10-00075-CV   In Re Keen Transport, Inc and Vincent Ray Burd    
Appeal from County Court No. 3 of Galveston County
Relators [...] filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R.
App. P. 52.  In the petition, relators ask this court to compel the Honorable Susan Criss, presiding judge of the 212th District Court
of Galveston County, to grant their motion to abate.
Relators have not included in the mandamus record a written order denying their motion to abate or that portion of a reporter’s
record demonstrating an oral ruling on their motion to abate..  See Tex. R. App. P. 52.3(k)(1); In re Bill Heard Chevrolet, Ltd., 209 S.
W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding).
Relators have not established their entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relators’
petition for writ of mandamus without prejudice to refiling in compliance with Rule 52.3(k)(1).  The emergency motion to stay
proceedings is denied as moot without prejudice to refiling.

In re Robertson (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(per curiam denial of mandamus)
MOTION OR WRIT DENIED: Per Curiam    
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00942-CV  In Re Ted Lawrence Robertson   
Appeal from 312th District Court of Harris County
Trial Court Judge: Hon. Robert Hinojosa
In re Robertson (pdf)  (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(per curiam)
AFFIRMED: Per Curiam    
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-01053-CV  In Re Ted Lawrence Robertson   
Appeal from 247th District Court of Harris County
Trial Court Judge: Judge Bonnie Crane Hellums
On November 9, 2009, relator, Ted Lawrence Robertson, filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code
Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, relator requests that we compel the Honorable Bonnie
Crane Hellums, presiding judge of the 247th District Court of Harris County, to grant his motion to vacate and/or set aside default
judgment and protective order or, alternatively, to rule on that motion.  Relator also requests that we compel the Honorable Robert
Hinojosa, presiding judge of the 312th District Court of Harris County, to grant his motion to vacate and/or set aside default
judgment and protective order or, alternatively, to rule on that motion.
As an initial matter, relator’s petition does not comply with the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 52.7(a)(1).  
Notwithstanding this deficiency, relator has not established that he is entitled to mandamus relief.
When a properly filed motion is filed and pending before the trial court, the act of giving consideration to and ruling on that motion is
a ministerial act, and mandamus may issue to compel the trial court to act.  Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.
App.—San Antonio 1997, orig. proceeding).  To establish that the trial court abused its discretion by failing to rule, the relator must
show that the trial court:  (1) had a legal duty to perform a nondiscretionary act; (2) was asked to perform that act; and (3) failed or
refused to do so.  In re Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding).  However, while we
have jurisdiction to direct the trial court to rule on a motion, we may not instruct the trial court on how to rule.  In re Ramirez, 994 S.W.
2d 682, 684 (Tex. App.—San Antonio 1998, orig. proceeding).
Relator has not provided a sufficient record in this original proceeding.  He has not attached file-stamped copies of the purportedly
pending motions to his petition and, therefore, has not demonstrated that he filed the subject motions with either the 312th or 247th
District Court.  Relator claims he requested that the trial courts rule on his pending motions, but, again, he has not provided file-
stamped copies of those motions requesting that the trial court rule on his motions.  Therefore, relator has not established that the
312th and 247th District Courts abused any discretion by failing to rule on any motions filed in those courts.  See In re Shredder
Co., L.L.C., 225 S.W.3d at 679.  Moreover, we cannot direct either the 312th or the 247th District Court to grant his pending motions.  
See In re Ramirez, 994 S.W.2d at 684.
Relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relator’s petition
for writ of mandamus.

In Re Johnson (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(per curiam denial)
(allegedly void final orders dismissing cases with prejudice are nevertheless appealable; mandamus relief denied)
(IFP appeal, finality of order for purposes of regular appeal, mandamus criteria)
MOTION OR WRIT DENIED: Per Curiam   
Before Justices Anderson, Guzman and Boyce  
14-09-00614-CV  In Re R. Wayne Johnson   
Appeal from 10th District Court of Galveston County (judge's name not on docket)
As an initial matter, relator's petition fails to comply with the Texas Rules of Appellate Procedure.  See Tex. R.
App. P. 20.1 (requiring relator to file affidavit of indigence if relator is seeking to proceed in appellate court
without advance payment of costs); Tex. R. App. P. 52.7(a)(1) (requiring relator to file certified or sworn copy of
every document that is material to relator's claim for relief and was filed in underlying proceeding).

In re Robertson, Ted Lawrence (Tex. App. - Houston [14th Dist.] Jun. 11, 200(per curiam) (mandamus relief
sought to compel trial judge to rule on motion to set aside default protective order; mandamus petition was
defective; applicant must secure ruling or establish refusal by trial court to perform ministerial act, non-
discretionary duty).
MOTION OR WRIT DENIED: Per Curiam  
Before Justices Seymore, Brown and Sullivan
14-09-00478-CV In Re Ted Lawrence Robertson
Appeal from 312th District Court of Harris County

In Re Strachan (Tex.App. - Houston [14th Dist.] Apr. 25, 2008)(per curiam) (insufficient record for mandamus
relief)
MOTION OR WRIT DENIED: Per Curiam  
Before Justices Frost, Seymore and Guzman)
14-08-00299-CV        In Re James G. Strachan
Appeal from 434th Judicial District Court of Fort Bend County
Trial Court Judge:  The Honorable James H Shoemake




CLAIMS AND DEFENSES IN TEXAS COURTS | INDEX TO HOUSTON CASE LAW PAGES |
TEXAS COURT OF APPEALS OPINIONS  
HOUSTON OPINIONS HOME PAGE