Opinion
NUMBER 13-14-00366-CV
07-07-2014
IN RE MICHAEL McCANN
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion Per Curiam
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Relator, Michael McCann, proceeding pro se, filed a petition for writ of mandamus in the above cause on July 3, 2014 through which he seeks to compel the trial court to serve process on the defendants in the underlying suit without payment. See TEX. R. CIV. P. 106, 145.
That same day, relator also filed a "Motion for Leave to File a Writ of Mandamus." Relator's motion for leave to file his petition for writ of mandamus is dismissed as moot. The Texas Rules of Appellate Procedure no longer require the relator to file a motion for leave to file an original proceeding. See generally TEX. R. APP. P. 52 & cmt.
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Mandamus is appropriate when the relator demonstrates that the trial court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). The relator has the burden of establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). In addition to other requirements, relator must include a statement of facts supported by citations to "competent evidence included in the appendix or record," and must also provide "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record." See generally TEX. R. APP. P. 52.3. In this regard, it is clear that relator must furnish an appendix or record sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the required contents for the record).
The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that relator has not met his burden to show himself entitled to the relief sought. In addition to other deficiencies, relator has not filed an appendix or record in support of the petition for writ of mandamus. Accordingly, the petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM