providing that to establish entitlement to the issuance of a writ of mandamus compelling a trial court to consider and rule on a pending motion, the relator bears the burden to establish that (1) the trial court had a legal duty to perform, (2) relator made a demand for performance of this duty, and (3) the trial court refused to act
How later courts described this case
- providing that to establish entitlement to the issuance of a writ of mandamus compelling a trial court to consider and rule on a pending motion, the relator bears the burden to establish that (1) the trial court had a legal duty to perform, (2) relator made a demand for performance of this duty, and (3) the trial court refused to act
- stating that mandamus cannot issue until there has been a demand upon the court for performance followed by refusal
- excusing requirement of request and refusal to file motion for rehearing when appellate court expressly stated in its judgment that further motions for rehearing would not be entertained
- stating three prerequisites to mandamus relief: a legal duty to perform, a demand for performance, and a refusal
Written by the judges who cited it.
The opinion
POPE, Justice,
dissenting.
I join in the dissent but would add this comment. This court has ordered a mandamus commanding the clerk of the court of civil appeals to file Ms. Willa Hudgins’ motion for rehearing that she has never tendered for filing. The document had not been prepared up to the time this cause was orally argued to this court, and so far as anyone knows, may never be prepared or tendered. But, the court has ordered the clerk to file it. The clerk has not failed in the performance of any duty with respect to Willa Hudgins’ phantom motion.