in Re Daniel Montes ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00573-CV
In re Daniel Montes
ORIGINAL PROCEEDING FROM HAYS COUNTY
M E M O R AN D U M O P I N I O N
Relator Daniel Montes filed a petition for writ of mandamus and request for
emergency stay complaining that the Hays County Local Administrative Judge has refused
to rule on Montes’s: (1) request for a prefiling order allowing him to proceed with a mandamus
petition previously filed with and denied by this Court; and (2) request to vacate a 2003 order
declaring him a vexatious litigant. See Tex. Civ. Prac. & Rem. Code §§ 11.101-.102; In re Montes,
No. 03-15-00472-CV, 2015 Tex. App. LEXIS 8648, at *2 (Tex. App.—Austin Aug. 18, 2015,
orig. proceeding) (mem. op.); http://www.txcourts.gov/judicial-data/vexatious-litigants.aspx.
Montes has not shown that he presented the judge with his requested relief; rather, Montes’s petition
states only that he “reached out” to the judge. See Terrazas v. Ramirez, 829 S.W.2d 712, 723
(Tex. 1991) (orig. proceeding) (noting general rule that mandamus is not available to compel action
that has not first been demanded and refused). Further, Montes has removed to federal court the
mandamus petition for which he now seeks permission to file.1
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Montes’s motion for rehearing and motion for en banc reconsideration remain pending due
to the stay triggered by his removal of the case to federal court.
The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a). The
request for emergency stay is dismissed as moot.
__________________________________________
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Pemberton and Field
Filed: September 16, 2015
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