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construing petition for writ of procedendo as petition for writ of mandamus "because, in substance, relator seeks to compel the trial court to rule on his application"
Summary of this case from Kam v. KarediaOpinion
NO. 01-11-01127-CV
04-24-2012
IN RE FLOYD PLEASANT TARVIN, IV, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Floyd Pleasant Tarvin, IV, has filed a pro se "Application and Petition for Writ of Procedendo Pursuant to Texas Rule of Appellate Procedure 72." Relator asks this court to direct respondent to rule on his application for "writ of coram vobis," pertaining to relator's underlying civil suit.
Respondent is the Honorable Dan Hinde of the 269th District Court, Harris County, Texas.
The underlying case is Floyd Pleasant Tarvin, IV v. Charles Bacarisse, No. 2009-29985, 269th Dist. Court (Harris County, Texas).
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Rule of Appellate Procedure 72, to which appellant cites, applies to proceedings in the Texas Court of Criminal Appeals. See TEX. R. APP. P. 72. In a civil suit, as here, Texas Government Code section 22.002(a) specifically grants the Supreme Court of Texas the power to issue a writ of procedendo. See TEX. GOV'T CODE ANN. § 22.002(a) (Vernon Supp. 2011). This court's statutory general writ power, however, is limited to "writ[s] of mandamus and all other writs necessary to enforce the jurisdiction of the Court." See TEX. GOV'T CODE ANN. § 22.221(a) (Vernon 2004). Relator has not established that the writ he seeks is necessary to enforce our jurisdiction.
We construe relator's petition as a petition for writ of mandamus because, in substance, relator seeks to compel the trial court to rule on his application. See In re Alpert, 276 S.W.3d 592, 595 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding) (noting that ruling upon motion is ministerial act and that mandamus may issue to compel trial court to act); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (acknowledging duty to liberally construe petition of party acting pro se to determine merits of complaints).
Mandamus will issue "only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). To show entitlement to mandamus relief, a relator must satisfy three requirements: (1) the lower court must have a legal duty to perform a nondiscretionary act, (2) the relator must make a demand for performance, and (3) the trial court must refuse that request. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). Specifically, to establish that the trial court abused its discretion by failing to rule, a relator must show that the trial court received his application, was aware of it, was asked to rule, and failed or refused to do so. See Barnes, 832 S.W.2d at 426. Here, relator has not provided us with a record showing that the trial court received his application, was aware of it, was asked to rule, and refused to rule. See id.
Furthermore, relator's petition does not comply with Rule of Appellate Procedure 52.3. See, e.g., TEX. R. APP. P. 52.3(k) (requiring "certified or sworn copy of any order complained of, or any other document showing the matter complained of").
Accordingly, we deny the petition for writ of mandamus. All pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Keyes, Bland, and Sharp.