Opinion
No. 09-10-00187-CV
Submitted on May 17, 2010.
Opinion Delivered June 10, 2010.
Original Proceeding.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
A petition for writ of mandamus filed by James Boshears seeks an order to compel the trial court to conduct an evidentiary hearing. Boshears wants to set aside a judgment signed by the judge following citation by publication in an asset forfeiture case. See TEX. R. CIV. P. 329(a).
Boshears alleges that $3,583.86 was seized when a traffic stop in Montgomery County led to his arrest on a failure-to-appear charge out of Ellis County. The funds were forfeited in a judgment following citation by publication. Boshears alleges that in authorizing citation by publication the trial court failed to inquire into the sufficiency of the diligence exercised by the State. According to Boshears, the State knew or should have known he was in jail and should have personally served him with citation. See TEX. R. CIV. P. 109.
In his response to the reply filed by the State, Boshears contends he invoked the trial court's jurisdiction with a Motion to Rescind filed on November 4, 2009. Boshears neither provided this Court with a copy of the document, nor showed that he filed the document within two years of judgment. Boshears also requests that this Court order discovery in the underlying case, but any discovery requests are not properly addressed to this Court.
In its reply to the petition for writ of mandamus, the State alleges the trial court signed a judgment in the asset forfeiture case on May 16, 2007, and argues that the petition filed on February 18, 2010, was filed too late to invoke the trial court's jurisdiction under Rule 329.
A motion for new trial where the defendant was served by publication must be filed within two years of the date of the judgment. See TEX. R. CIV. P. 329. The mandamus record does not show that the trial court refused to consider a timely-filed motion for new trial. See id. Because he failed to establish that the document was filed at a time when the trial court had plenary power over the case, Boshears has not established a clear abuse of discretion by the trial court. Compare Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.-San Antonio 1997, orig. proceeding) (a trial court has a ministerial duty to consider and rule on a properly filed and pending motion within a reasonable time), with In re Williams, No. 09-09-00584-CV, 2010 WL 183861, at *1 (Tex. App.-Beaumont Jan. 21, 2010, orig. proceeding), and In re Cash, No. 06-04-00045-CV, 2004 WL 769473, at *1 (Tex. App.-Texarkana Apr.13, 2004, orig. proceeding) (a trial court has no duty to rule on "free-floating motions unrelated to currently pending actions").
A bill of review filed within the time for filing a Rule 329 motion may be treated as a motion for new trial. See Brown v. Breneman, 385 S.W.2d 461, 462-63 (Tex. App.-Dallas 1964, no writ). In this case, it is possible that Boshears filed his petition outside the time for seeking a new trial pursuant to Rule 329 but within the time for filing a bill of review. However, Boshears has not presented a mandamus record that establishes that he met the procedural requirements for the trial court to consider the merits of a bill of review. See generally Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (1979). The document Boshears appended to his mandamus petition does not request that citation issue. See Backus v. Roper, 195 S.W.2d 261, 263 (Tex. Civ. App.-Fort Worth 1946, no writ) ("[J]urisdiction to grant equitable relief from a judgment is ordinarily invoked by an independent suit in which the opposite party is cited as in ordinary cases unless citation is waived or an appearance entered."). On this record, we cannot determine that Boshears effectively invoked the trial court's jurisdiction.
Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). Boshears fails to demonstrate that the trial court abused its discretion. Accordingly, we deny the petition for writ of mandamus.
PETITION DENIED.