In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00110-CV
IN RE: ARNOLD NELSON
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Arnold Nelson, proceeding pro se, has filed a petition for writ of mandamus asking this
Court to order the 202nd Judicial District Court of Bowie County, Texas, to rule on his motion to
cease garnishment and return withdrawn funds, which he states was filed months ago.
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 (Tex. 1992) (orig. proceeding); see In re
Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex. 2009) (orig.
proceeding). The Texas Supreme Court has adopted a balancing test to determine whether a
party has an adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
136 (Tex. 2004) (orig. proceeding). Relator must establish that the trial court (1) had a
ministerial duty to perform the act, (2) was asked to perform the act, and (3) failed or refused to
do so. In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding).
A trial court has a ministerial duty to consider and rule on a properly filed and pending
motion within a reasonable time. See In re Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana
2005, orig. proceeding). In general, we have mandamus jurisdiction to direct the trial court to
make a decision, but we may not tell the trial court what that decision should be. In re Blakeney,
254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). Any such mandamus
relief, however, must be predicated on an adequate showing that a request for a ruling has been
properly and adequately presented to the trial court and that the court has declined to rule. Id.
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In spite of his petition that this Court order the trial court to rule on his motion, Nelson
has failed to provide this Court with any record in support of his petition. It is the relator’s
burden to provide this Court with a sufficient record to establish his right to mandamus relief.
Walker, 827 S.W.2d 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. Nelson’s petition is not
accompanied by a certified or sworn copy of the motion that is the subject of his complaint, as
required by Rule 52.3 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P.
52.3(k)(1). Likewise, Nelson’s petition fails to show that his motion was brought to the attention
of the trial court. The trial court is not required to consider a motion unless it is called to the
court’s attention. Blakeney, 254 S.W.3d at 662. Nelson’s petition does not include an appendix
or any other attempt to provide a record for our review. Without some record of this type, we are
unable to grant the extraordinary relief he has requested.
For the reasons stated, Nelson’s petition is denied.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 4, 2013
Date Decided: November 5, 2013
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