Opinion

in Re Donald Ray Mitchell

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Jan 26, 2012
Status
Published
Cited by
0 cases
Authority
More cited than 42.2%

The opinion

Opinion issued January 26, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00910-CV

———————————

In rE Donald Ray

Mitchell , Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION [1]

Relator, Donald Ray Mitchell, filed a pro se petition for

writ of mandamus, complaining that the trial court “refuses” to rule on his “Will

Contest, Declaratory Judgment suit and several other motions” challenging the

authentication and probate of the Will of the Estate of Willie Benton. His suit and various motions, some of which

he contends were filed as long as twenty-eight months ago, are pending before

Probate Court One of Harris County, Texas, the Honorable Kathy Stone presiding.

A writ of mandamus will issue to correct a clear abuse of

discretion or the violation of a duty imposed by law when there is no adequate

remedy at law. Canadian Helicopters Ltd. v. Wittig , 876 S.W.2d 304, 305 (Tex.

1994) (orig. proceeding). To establish

that the trial court refused to rule on a pending motion, the relator must

provide a record demonstrating that he asked the trial court for a ruling on

his motion and that the trial court refused to rule. See

Barnes v. State , 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992,

orig. proceeding); see also Walker v.

Packer , 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). The mandamus record must show that the motion

was presented to the trial court and that the trial court refused to rule on

it. See

In re Chavez , 62 S.W.3d 225, 228 (Tex. App–Amarillo 2001, orig.

proceeding).

Relator’s petition does not comply with the Texas Rules of

Appellate Procedure. See, e.g. , Tex. R. App. P. 9.5 (requiring relator

to serve a copy of petition on all parties to proceeding, i.e., the respondent

and the real parties in interest); Tex. R. App. P. 52.3(k)

(requiring relator to file appendix that includes a certified or sworn copy of

any document showing matter complained of); Tex.

R. App. P. 52.7 (requiring

relator to file mandamus record containing all documents material to claim for

relief); Tex. R. App. P. 10.1(a)(5) (requiring civil motions contain or

be accompanied by certificate stating that filing party conferred, or made

reasonable attempt to confer, with all other parties about merits of motion — except respondent judge in original

proceeding — and

whether those parties oppose motion).

Accordingly, the petition for writ of mandamus is denied .

PER CURIAM

Panel

consists of Justices Jennings, Sharp and Brown.

[1] Mitchell

identifies the underlying suit as a contest to the Will and Probate of the

Estate of Willie Benton that he filed in Probate Court One of Harris County,

the Honorable Kathy Stone presiding.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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