Court of Appeals of Texas, Sixth District, Texarkana
Submitted: June 11, 2019
Original Mandamus Proceeding
Morriss, C.J., Burgess and Stevens, JJ.
M EMOR ANDUM OPINION
R. Morriss, III Chief Justice
Farm Lloyds (State Farm) has filed a petition for writ of
mandamus alleging that it filed a Motion to Modify Order
(Motion to Modify), seeking the modification of an Order
Granting Interpleader (the Order) entered by the Honorable
Craig L. Henry, judge of the County Court at Law of Bowie
County (the Respondent). State Farm asks this Court to direct
the Respondent to modify its Order as requested in its Motion
to Modify, or, in the alternative, to enter an order granting
it the relief requested in its Original Petition for
Interpleader. We deny State Farm's petition because State
Farm has not shown that it is entitled to mandamus relief.
Farm filed an Original Petition for Interpleader and
Declaratory Judgment against Cynthia Nixon, et. al., seeking
to interplead the policy limits of the structure coverage
under its insurance policy insuring the structure and
contents of a house in Texarkana and a declaratory judgment
as to the compliance of the defendants with the policy
conditions for the payment of contents coverage, and of the
value of that coverage.
March 29, 2019, the Respondent entered the Order granting the
interpleader, but in addition to requiring State Farm to
deposit into the registry of the court the policy limits of
the structure coverage, the Order required it also to deposit
the policy limits of the contents coverage. In its petition,
State Farm states that it filed its Motion to
Modify asking the trial court to modify the Order
by eliminating the portion ordering it to deposit the policy
limits for the contents coverage and that over forty-five
days have passed since the Order was signed.
relief will be granted only when the record establishes (1) a
clear abuse of discretion or the violation of a duty imposed
by law and (2) the absence of a clear and adequate remedy at
law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.
1992) (orig. proceeding); see In re Columbia Med. Ctr. of
Las Colinas, 290 S.W.3d 204, 207 (Tex. 2009) (orig.
proceeding). Consideration of a motion that is properly filed
and before the court is a ministerial act. State ex rel.
Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App.
1987). However, the relator must provide this Court with a
record sufficient to establish the right to mandamus relief.
Walker, 827 S.W.2d at 837; In re Pilgrim's
Pride Corp., 187 S.W.3d 197, 198-99 (Tex. App.-Texarkana
2006, orig. proceeding); see TEX. R. APP. P. 52.3.
Farm has not provided this Court with a certified or sworn
copy of its filed Motion to Modify, as required by the Texas
Rules of Appellate Procedure. See Tex. R. App. P.
52.3(k)(1)(A). State Farm's failure to comply with this
rule is fatal to its request, because, without certified or
sworn copies of the motion, we cannot determine that the
motion has actually been filed. See In re Shugart, 528
S.W.3d 794, 796 (Tex. App.-Texarkana 2017, orig. proceeding)
In addition, State Farm has not provided any evidence that
the motion was brought to the trial court's attention and
that a ruling was requested. The relator must show that the
trial court received, was aware of, and was asked to rule on
the motion. In re Grulkey, No. 14-10-00450-CV, 2010
WL 2171408, at *1 (Tex. App.-Houston [14th Dist.] May 28,
2010, orig. proceeding) (mem. op.) (per curiam) (citing
In re Villarreal, 96 S.W.3d 708, 710 (Tex.
App.-Amarillo 2003, orig. proceeding)); see also
In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.-Texarkana
2008, orig. proceeding) ("Showing that a motion was
filed with the court clerk does not constitute proof that the
motion was brought to the trial court's attention or
presented to the trial court with a request for a
Farm has not shown that it is entitled to the requested
relief. We deny the petition for writ of mandamus.
State Farm does not indicate when the
Motion to Modify was filed.
Although State Farm has attached a copy
of a Motion to Modify, and has sworn that it is a true copy,
the document contains no file mark or any other indication
that the ...