Opinion
No. 14-08-00299-CV
Opinion filed June 19, 2008.
Original Proceeding Writ of Mandamus.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
MEMORANDUM OPINION ON REHEARING
Relator's motion for rehearing is overruled. The memorandum opinion issued on April 25, 2008 is withdrawn. This memorandum opinion is substituted in its place.
On April 14, 2008, relator, James G. Strachan, filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable P.K. Reiter, visiting judge of the 434th District Court of Fort Bend County, to grant the motion to dismiss with prejudice filed by real party in interest, Solum Engineering, Inc.
To establish that the trial court abused its discretion by failing to rule, the relator must show that the trial court: (1) had a legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and (3) failed or refused to do so. In re Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex.App.-El Paso 2006, orig. proceeding). The Honorable James Shoemake made the original ruling on the motion to dismiss prior to his recusal and the appointment of Judge Reiter as visiting judge. Relator states in his petition for writ of mandamus that he filed a motion to reconsider, Judge Reiter held a hearing on the motion to reconsider on January 7, 2008, and Judge Reiter refused to sign the dismissal order at the end of the hearing. However, there is nothing in the record to indicate that relator presented the motion to reconsider to Judge Reiter or that Judge Reiter refused to rule on it. Moreover, we do not have a reporter's record of the January 7, 2008 hearing.
Relator has the burden of providing this Court with a sufficient record to establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Because relator has failed to provide this Court with a sufficient record, he has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator's petition for writ of mandamus.