In Re Richard Lee Glenn--Appeal from of County

State: Texas

Court: Texas Northern District Court

Docket No: 07-06-00446-CV

Case Date: 12/20/2006

Plaintiff: MARCUS DOWNIE

Defendant: THE STATE OF TEXAS--Appeal from 319th District Court of Nueces County

Preview:NO. 07-06-0446-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A DECEMBER 20, 2006 ______________________________ IN RE RICHARD LEE GLENN, RELATOR _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON PETITION FOR WRIT OF MANDAMUS

Relator Richard Lee Glenn, proceeding pro se, seeks a writ of mandamus directing the Honorable John Board, Judge of the 181st District Court of Potter County, to hold a hearing and rule on his application for writ of mandamus seeking to compel Caroline Woodburn, Potter County District Clerk, to issue citation in a civil case. We will deny relator's petition.

Relator alleges he filed a civil action in the 181st District Court on December 12, 2005, and that he sought issuance of citation through the district clerk's office. Relator alleges that he has made requests of the district clerk's office by letter on April 17th, June 7th, and August 9th of 2006. He further alleges that he has received no response from the district clerk's office and that no citations have been issued from said office. No certified

or sworn copies of the application were included with the petition for writ of mandamus as

required by Rule 52.3(j)(1)(A) of the Texas Rules of Appellate Procedure.

Relator

maintains the trial court abused its discretion by refusing to hear and rule on his motions. He also asserts he has no adequate remedy by law.

"Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). To show entitlement to mandamus relief in circumstances such as those presented by relator's petition, he must satisfy three elements: first, a legal duty to perform a non-discretionary act; second, a demand for performance; and third, refusal of that demand. See Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). When a motion is properly pending before a trial court, the act of considering and ruling on the motion is a ministerial act. See Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding). However, the trial court has a reasonable time within which to perform that ministerial duty. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.

Download 11659.pdf