in Re Larry Taylor ( 2010 )

Opinion issued October 29, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00893-CV

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IN RE Representative Larry Taylor, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

By petition for writ of mandamus, State Representative Larry Taylor challenges the trial court’s order temporarily enjoining the Texas Windstorm Insurance Association from producing documents related to its settlement of certain claims in response to Representative Taylor’s request for information under the Texas Public Information Act.  See Tex. Gov’t Code Ann. §§ 552.001-.353 (Vernon 2004 & Supp. 2010).  The underlying case is Joe Vardell and Jacquelyn Vardell v. Texas Windstorm Insurance Association, Paul Mikkelsen, Bill Astin, and Reggie Warren, No. 09-CV-2012 in the 122nd Judicial District Court of Galveston County, Texas, the Hon. Susan Criss presiding.

In two issues, Representative Taylor contends that the temporary injunction (1) violates the separation-of-powers doctrine by unduly interfering with the lawful exercise of legislative and executive duties and (2) contravenes provisions of the Public Information Act and the Insurance Code requiring disclosure of the information he requested.  See Tex. Gov’t Code Ann. § 552.008 (Vernon Supp. 2010); Tex. Ins. Code Ann. § 2210.653 (Vernon Supp. 2010).  We deny the petition for writ of mandamus.

“As a rule, mandamus is not available to compel an action which has not first been demanded and refused.”  Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991); accord In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999); In re Smith, 263 S.W.3d 93, 96 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The record does not demonstrate that presentment of the issues raised by Representative Taylor would be futile or little more than a formality in the trial court.  Cf. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979) (excusing requirement of request and refusal to file motion for rehearing when appellate court expressly stated in its judgment that further motions for rehearing would not be entertained).  Neither has Representative Taylor shown that he lacks any reason or opportunity to intervene or otherwise present his request in the underlying proceeding.  Cf. Terrazas, 829 S.W.2d at 725 (excusing requirement of request and refusal when requested relief was sought by other similarly situated parties and denied).  Thus, on this record, Representative Taylor has not shown circumstances which excuse the ordinary prerequisites of request and refusal.  Cf. id.; see Hursey v. Bond, 172 S.W.2d 305, 306 (Tex. 1943).  We are confident that the trial court, if presented the opportunity, will rule promptly on the issues briefed in Representative Taylor’s petition.

Accordingly, we hold that Representative Taylor is not entitled to mandamus relief under the present circumstances.  See Terrazas, 829 S.W.2d at 723.  We overrule all outstanding motions as moot.

Per Curiam

Panel consists of Chief Justice Radack and Justices Jennings and Massengale.