in Re Boris Twain Clewis ( 2009 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April 7, 2009

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April 7, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-09-00272-CV

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IN RE BORIS TWAIN CLEWIS, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On March 25, 2009, relator, Boris Twain Clewis, filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  According to his petition, on December 29, 2008, relator filed a motion for temporary administrator and administrator to produce estate accounting and to account for all his acts as appointee in the underlying probate proceeding.  The respondent, the Honorable Rory Olsen, presiding judge of Probate Court No. 3 of Harris County, has not acted on relator=s motion.  Relator requests that we compel the trial court to direct the estate administrator to produce an estate accounting and to account for all his acts as appointee and comply with Section 262 of the Texas Probate Code.  See Tex. Prob. Code Ann. ' 262 (Vernon 2003).^[1]

Relator has not met his burden of providing this court with a sufficient record to establish his right to mandamus relief.  Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).  Relator has not provided this court with a sworn or certified record, including every document relevant to his claim for relief.  See Tex. R. App. P. 52.7(a) (requiring certified or sworn copy of every document material to claim for relief).  Relator also has not verified the factual statements contained in his petition.  See Tex. R. App. P. 52.3(j) (stating person filing petition must certify he has reviewed petition and concluded every factual statement in petition is supported by competent evidence included in appendix or record). 

A writ of mandamus may be issued to compel the trial court to act on a motion that is properly filed and pending before it.  Safety‑Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.CSan Antonio 1997, orig. proceeding).  To establish that the trial court abused its discretion by failing to rule, the relator must show 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 Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex. App.CEl Paso 2006, orig. proceeding). 

Relator has not established the trial court abused its discretion because he has not shown that a properly filed motion is pending before the trial court or that any such motion was presented to the trial court with a request for a ruling. Moreover, while we have jurisdiction to direct the trial court to rule on a motion, we may not tell the trial court how to rule on such motion.  In re Martinez Ramirez, 994 S.W.2d 682, 684 (Tex. App.CSan Antonio 1988, orig. proceeding).

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relator=s petition for writ of mandamus. 

PER CURIAM

Panel consists of Justices Yates, Guzman, and Sullivan. 

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            ^[1]  Section 262 of the Texas Probate Code states:

At any time after the return of inventory, appraisement, and list of claims of a deceased person, any one entitled to a portion of the estate may, by a written complaint filed in the court in which such case is pending, cause the executor or administrator of the estate to be cited to appear and render under oath an exhibit of the condition of the estate.

Tex. Prob. Code Ann. ' 262.