Summary
denying petition seeking writ directing trial court to file findings of fact and conclusions of law because relator could raise an issue in the direct appeal regarding the trial court's alleged failure to enter written findings and conclusions
Summary of this case from In re RhodesOpinion
No. 08-16-00126-CV
07-27-2016
IN RE LARRY JOE MORGAN, RELATOR.
ORIGINAL PROCEEDING ON PETITION FOR WRIT OF MANDAMUS MEMORANDUM OPINION
Relator, Larry Joe Morgan, has filed a petition for writ of mandamus against Gayle Henderson, the Pecos County District Clerk, and the Honorable Stephen Ables, Presiding Judge of the 83rd District Court of Pecos County, Texas. Relator asks that we direct the trial court to file findings of fact and conclusions of law in Larry Joe Morgan v. Glen Whitfield, et al., cause number P-7504-83CV, which is currently pending on direct appeal in this Court, cause number 08-16-00080-CV. The petition for writ of mandamus is denied.
Relator's mandamus petition is directed against the Pecos County District Clerk. This Court does not have mandamus jurisdiction over a district clerk unless it is shown that issuance of the writ is necessary to enforce our jurisdiction. See TEX.GOV'T CODE ANN. § 22.221(a), (b) (West 2004); In re Simmonds, 271 S.W.3d 874, 879 (Tex.App.--Waco 2008, orig. proceeding); In re Smith, 263 S.W.3d 93, 95 (Tex.App.--Houston [1st Dist.] 2006, orig. proceeding). Relator has not alleged any action on the part of the District Clerk which would interfere with our jurisdiction. Consequently, we lack jurisdiction to address Relator's petition as it pertains to the District Clerk.
Relator's petition is also directed against the trial judge who dismissed Relator's suit in cause number P-7504-83CV. To be entitled to mandamus relief, a relator generally must meet two requirements. First, the relator must show that the trial court clearly abused its discretion. In re Prudential Insurance Company of America, 148 S.W.3d 124, 135 (Tex. 2004). Second, the relator must demonstrate that there is no adequate remedy by appeal. Id. at 135-36. We note that Relator may raise an issue in the direct appeal regarding the trial court's alleged failure to enter written findings and conclusions. Accordingly, we deny the petition for writ of mandamus because Relator has failed to demonstrate that he is entitled to mandamus relief. July 27, 2016
YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rodriguez, and Hughes, JJ.