in Re Jeraldmain Crain ( 2002 )

In re Jeraldmain Crain

  IN THE

TENTH COURT OF APPEALS

No. 10-02-196-CV

IN RE JERALDMAIN CRAIN

Original Proceeding

O P I N I O N

      Jeraldmain Crain brought a petition for writ of mandamus in this Court alleging the Respondent has failed to hear and rule on his Motion for Preliminary Injunction. We ordered that a response be filed with the clerk no later than 5:00 p.m. on August 7, 2002, by any person whose interest would be directly affected by the relief sought in the petition. We also requested that any response filed on behalf of the real party in interest must be delivered to the Court by 5:00 p.m. on October 21, 2002. No response to either order or request was filed.

      The legislature has prescribed jurisdiction of a court of appeals to issue writs of mandamus (1) to enforce the court’s jurisdiction, and (2) against judges of district and county courts in the district of the particular court of appeals. Tex. Gov't Code Ann. § 22.221 (Vernon Supp. 2003). A writ of 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." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). When an official fails to perform a ministerial act, that is a violation of a duty imposed by law. See Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991); In re Bailey, 975 S.W.2d 430, 432 (Tex. App.—Waco 1998, orig. proceeding). When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act. In re Taylor, 39 S.W.3d 406, 411 (Tex. App.—Waco 2001, orig. proceeding). A trial court may not arbitrarily halt proceedings in a pending case, and mandamus will lie to compel a trial court to hear and rule on motions pending before it. In re Tasby, 40 S.W.3d 190, 191 (Tex. App.—Texarkana 2001, orig. proceeding).

      Crain contends he filed a motion for preliminary injunction on February 15, 2002, and the trial court has neither heard nor ruled on the motion. Nothing in the record before us indicates otherwise. Respondent has violated duties imposed by law by failing to perform the ministerial acts of considering and ruling on Crain’s motion. Crain has no adequate remedy by appeal. Thus, the mandamus is conditionally granted. The writ will issue if Respondent fails to advise this Court within twenty days of the date of this opinion that he has either set a hearing or has ruled on Crain’s motion.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Writ of mandamus conditionally granted

Opinion delivered and filed December 11, 2002

Do not publish

[CV06]