in Re Floyd Edward Hamm ( 2011 )

02-11-034-CV

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00034-CV

In re Floyd Edward Hamm

RELATOR

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ORIGINAL PROCEEDING

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MEMORANDUM OPINION^[1]

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The court has considered relator’s petition for writ of mandamus and is of the opinion that relief should be denied.  By an order signed on November 22, 2010, the trial court denied relator’s “REQUEST TO RESCIND JUDGEMENT AND ORDER TO WITHDRAW FUNDS.”  Relator had an adequate remedy at law—a direct appeal to this court—to challenge the trial court’s order; thus, he may not attack it by seeking mandamus.  See Harrell v. State, 286 S.W.3d 315, 321 (Tex. 2009); In re Pannell, 283 S.W.3d 31, 35 (Tex. App.—Fort Worth 2009, orig. proceeding) (“Mandamus is not available if another remedy, though it would have been adequate, was not timely exercised.”); In re Carson, 12 S.W.3d 886, 888 (Tex. App.—Texarkana 2000, orig. proceeding) (holding that a relator was not entitled to mandamus relief because he “did not take advantage of [a] clearly adequate remedy when it existed”).  Accordingly, relator’s petition for writ of mandamus is denied.

PER CURIAM

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: January 27, 2011

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          ^[1]See Tex. R. App. P. 47.4, 52.8(d).