Petition for Writ of Mandamus Denied and Memorandum Opinion filed
November 13, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00851-CV
IN RE BORIS TWAIN CLEWIS, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
127th District Court
Harris County, Texas
Trial Court Cause No. 2013-42761
MEMORANDUM OPINION
On October 22, 2014, relator Boris Twain Clewis filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this court to compel the Honorable R.K.
Sandill, presiding judge of the 127th District Court of Harris County, to rule on
relator’s plea in abatement.
In his petition, relator states that he is a beneficiary of the Estate of Redell
Clewis, Sr., which has been pending in Probate Court No. 3 of Harris County,
Texas, since 1999. A number of taxing authorities filed suit to collect delinquent
ad valorem taxes against relator on July 29, 2013, in the 127th District Court.
Relator claims that he filed a plea in abatement and a motion requesting a hearing
on his plea in abatement in the 127th District Court on July 23, 2014, because
Probate Court No. 3 acquired dominant jurisdiction in 1999. Relator further states
that he filed another motion objecting to the trial court’s refusal to rule on his plea
in abatement.
To be entitled to mandamus relief, the relator must demonstrate (1) the trial
court clearly abused its discretion; and (2) the relator has no adequate remedy by
appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial
court has a ministerial duty to consider and rule on motions properly filed and
pending before it, and mandamus may issue to compel the trial court to act. In re
Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding);
Ex parte Bates, 65 S.W.3d 133, 134 (Tex. App.—Amarillo 2001, orig.
proceeding). To be entitled to mandamus relief compelling a trial court to rule on
a properly filed motion, relator must establish that the trial court (1) had a legal
duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed or
refused to rule on the motion within a reasonable time. In re Layton, 257 S.W.3d
794, 795 (Tex. App.—Amarillo 2008, orig. proceeding); In re Molina, 94 S.W.3d
885, 886 (Tex. App.—San Antonio 2003, orig. proceeding).
It is relator’s burden to provide this court with a sufficient record to establish
his right to mandamus relief. See Walker v Packer, 827 S.W.2d 833, 837 (Tex.
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1992) (orig. proceeding). Relator has not included a copy of the plea in abatement,
motion for a hearing, or motion objecting to the trial court’s refusal to rule on his
plea—file-stamped or otherwise—with his petition. See Tex. R. App.P. 52.3(k)(1).
Without a file-stamped copy of this plea in abatement and his motions, relator has
not shown that such documents are pending in the trial court. See Blakeney, 254
S.W.3d at 661−62. Therefore, relator has not shown that the trial court had a duty
to rule on his plea in abatement or his motions.
Relator further asserts that the trial court has no discretion to deny his plea to
the jurisdiction. While we have jurisdiction to direct the trial court to make a
decision, we may not tell the trial court how to rule on his plea in abatement. See
In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.—San Antonio 1998, orig.
proceeding).
Relator has not shown that he is entitled to mandamus relief. Accordingly,
we deny his petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Christopher and Busby.
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