DENIED and Opinion Filed September 28, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00927-CV
IN RE ENERGY TRANSFER LP, ENERGY TRANSFER MARKETING &
TERMINALS, L.P., AND SEANTERRY BURKS, Relators
Original Proceeding from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-23-02975
MEMORANDUM OPINION
Before Justices Reichek, Smith, and Kennedy
Opinion by Justice Reichek
Before the Court is relators’ September 20, 2023 petition for writ of
mandamus. Relators argue that the trial court overtly refused to rule on their pleas
in abatement at an August 18, 2023 hearing, and they ask this Court to compel the
trial court to rule on their pleas in abatement within seven days.
Entitlement to mandamus relief requires relators to show that the trial court
clearly abused its discretion and that relators lack an adequate appellate remedy. In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding).
A trial court’s ruling that it is not going to rule on a pending motion is itself a
ruling. In re MHI P’ship, Ltd., 7 S.W.3d 918, 921 n.6 (Tex. App.—Houston [1st
Dist.] 1999, orig. proceeding) (“The trial judge ruled not to rule; this is a ruling.”).
To the extent relators contend the trial court abused its discretion by ruling that it
would not rule on relators’ pleas in abatement until the case gets closer to trial, based
on our review of the petition and record before us, we conclude that relators have
not demonstrated that they have raised their arguments in the trial court before
seeking mandamus relief. See In re Floyd, No. 05-16-00491-CV, 2016 WL 2353874,
at *1 (Tex. App.—Dallas May 3, 2016, orig. proceeding) (mem. op.) (“[A]rguments
not presented to the trial court cannot first be considered in an original proceeding
seeking mandamus.”); In re Rowes, No. 05-14-00606-CV, 2014 WL 2452723, at *1
(Tex. App.—Dallas May 30, 2014, orig. proceeding) (mem. op.) (“A court cannot
grant mandamus relief unless the error was raised in the trial court,” and “[a] party
seeking mandamus must direct the Court to where the argument was presented to
the trial court.”).
To the extent relators simply contend their pleas in abatement have been
pending for an unreasonable period of time without a ruling from the trial court, we
conclude based on our review of the petition and record before that this proceeding
is premature. See In re Noble, No. 05-23-00322-CV, 2023 WL 2910619, at *1 (Tex.
App.—Dallas Apr. 12, 2023, orig. proceeding) (mem. op.); cf. In re Reiss, No. 05-
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22-00575-CV, 2022 WL 2236089, at *2 (Tex. App.—Dallas June 21, 2022, orig.
proceeding) (mem. op.).
Accordingly, we deny relators’ petition for writ of mandamus.
Also before the Court is relators’ September 21, 2023 Emergency Motion for
Stay and Temporary Relief by Monday, October 2, 2023. We deny relators’
emergency motion as moot.
230927f.p05 /Amanda L. Reichek//
AMANDA L. REICHEK
JUSTICE
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