IN RE THOMAS W. STEPHENS, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS WRIT OF INJUNCTION
DECLARATORY RELIEF 309TH DISTRICT COURT HARRIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. 2016-55185
consists of Justices Wise, Jewell, and Hassan.
20, 2019, relator Thomas W. Stephens filed a petition for
writ of mandamus, petition for writ of injunction, and
petition for declaratory judgment in this court. See
Tex. Gov't Code Ann. § 22.221; see also Tex.R.App.P.
52. Relator names the Honorable Linda Marie Dunson, presiding
judge of the 309th District Court of Harris County, and Molly
Mai, court coordinator of the 309th District Court, as
underlying suit affecting the parent-child relationship,
relator filed a counter-petition to modify the parent-child
relationship. Included in relator's counter-petition is a
request for temporary orders. Relator complains that Mai
refused his requests to set his counter-petition and request
for temporary orders for a hearing and the trial court
refused to rule on his counter-petition and request. Relator
seeks relief from Mai's purported refusal to set his
counter-petition and for a hearing and the trial court's
failure to rule on the counter-petition
Petition for Writ of Mandamus
of appeals may issue writs of mandamus against certain
specified parties. Tex. Gov't Code § 22.221(b). The
courts of appeals may also issue all writs necessary to
enforce the court of appeals' jurisdiction. Id.
§ 22.221(a). A court coordinator is not among parties
specified in the Government Code against whom a writ of
mandamus may issue. See id. at § 22.221(b).
Relator has not shown that the issuance of a writ of mandamus
against Mai is necessary to enforce this court's
jurisdiction. See id. at § 22.221(a). The
petition for writ of mandamus against Mai is dismissed for
lack of jurisdiction.
District Court Judge
to be entitled to mandamus relief, a relator must show that
the trial court abused its discretion and that the relator
lacks an adequate remedy by appeal. In re N. Cypress Med.
Ctr. Operating Co., Ltd., 559 S.W.3d 128, 130 (Tex.
2018) (orig. proceeding). When a motion is properly pending
before a trial court, the act of considering and ruling on it
is ministerial, and mandamus may issue to compel the trial
court to act. Eli Lilly & Co. v. Marshall, 829
S.W.2d 157, 158 (Tex. 1992) (orig. proceeding) (per curiam).
To establish that the trial court abused its discretion by
failing to rule on a properly pending motion, the relator
must establish that the trial court (1) had a legal duty to
perform a nondiscretionary act; (2) was asked to perform the
act; and (3) failed or refused to do so. In re
Pollet, 281 S.W.3d 532, 534 (Tex. App.-El Paso 2008,
filed his counter-petition to modify the parent-child
relationship with the district clerk as it bears the
clerk's stamp showing the time and date it was filed.
Relator made Mai aware of the counter-petition. However,
relator has not shown that the trial judge was aware of his
counter-petition or request for temporary orders therein
contained. The court coordinator's knowledge of the
counter-petition does not impute her knowledge of the filing
to the trial judge. Cf. In re Smith, 279 S.W.3d 714,
715 n.1 (Tex. App.-Amarillo 2007, orig. proceeding) (holding
that filing a document with the district clerk does not mean
that the trial court knows of it; nor is the clerk's
knowledge imputed to the trial court); In re Chavez,
62 S.W.3d 225, 228 (Tex. App.-El Paso 2001, orig. proceeding)
must show that the trial judge knew of the filing of the
counter-petition, and the trial judge cannot be faulted for
not ruling on a motion that was not called to her attention.
The petition for writ of mandamus against Judge Dunson is
Petition for Writ of Injunction
purpose of a temporary injunction is to enforce or protect
the appellate court's jurisdiction. In re
Sheshtawy, 161 S.W.3d 1, 1 (Tex. App.-Houston [14th
Dist.] 2003, orig. proceeding). The writ of injunction is
issued by superior court to control, limit, or prevent action
in a court of inferior jurisdiction. In re Olson,
252 S.W.3d 747, 747 (Tex. App.-Houston [14th Dist.] 2008,
orig. proceeding). The use of a ...