in Re: Buford Tyrone Blaylock ( 2017 )

NO. 12-17-00160-CV
NO. 12-17-00161-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
BUFORD TYRONE BLAYLOCK, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
Relator, Buford Tyrone Blaylock, has filed these original proceedings in which he
challenges the trial court’s orders directing the Texas Department of Criminal Justice to
withdraw funds from Relator’s inmate trust account and the trial court’s refusal to rule on his
motion to rescind the orders. We deny the petition.
To be entitled to mandamus relief, a relator must demonstrate that (1) the trial court
clearly abused its discretion, and (2) the relator has no adequate remedy by appeal. In re
McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008) (orig. proceeding). To the extent
Relator challenges the trial court’s orders to withdraw funds from his inmate trust account,
“appellate review should be by appeal, as in analogous civil post-judgment enforcement actions.”
Harrell v. State, 286 S.W.3d 315, 321 (Tex. 2009). Accordingly, a complaint regarding the
withdrawal of funds from an inmate’s trust account is not an appropriate subject for mandamus
relief.1 In re Hill, No. 05-16-00911-CV, 2016 WL 4136560, at *1 (Tex. App.—Dallas Aug. 3,
2016, orig. proceeding) (mem. op.).
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Relator previously attempted to appeal the trial court’s inaction on his motions to rescind, but those
appeals did not challenge the orders themselves. See Blaylock v. State, Nos. 12-16-00240-CV, 12-16-00241-CV,
2017 WL 411380 (Tex. App.—Tyler Jan. 31, 2017, no pet.) (mem. op.). Thus, we dismissed the appeals for want of
jurisdiction. See id.
Regarding the trial court’s failure to rule on Relator’s motion to rescind the orders, to
obtain a writ of mandamus compelling a trial court to consider and rule on a motion, the relator
must show that 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 Molina, 94 S.W.3d 885, 886
(Tex. App.–San Antonio 2003, orig. proceeding). Generally, a trial court has a nondiscretionary
duty to consider and rule on a motion within a reasonable time. In re Thomas, No. 12–05–
00261–CV, 2005 WL 2155244, at *1 (Tex. App.–Tyler Sept. 7, 2005, orig. proceeding) (mem.
op.). However, a trial court cannot be expected to consider a motion not called to its attention.
See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding). It is
incumbent upon the relator to establish that the motion has been called to the trial court’s
attention. See id.
Relator contends that he filed his motion on June 20, 2016, and filed objections to the
trial court’s refusal to rule on March 22, 2017. The record does not contain either the motion or
the objections. The mere statement that a document was filed is insufficient to reasonably infer
that the trial court had notice of the filed document and of the need to act on it. Id. The record
does not indicate that, in this case, the trial court was afforded or had notice of Relator’s motion
or objections. See id. Consequently, Relator has not established that mandamus relief is
available for the trial court’s failure to rule on his motion to rescind the order to withdraw funds
from his inmate trust account. Accordingly, we deny his petition for writ of mandamus.
Opinion delivered May 31, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MAY 31, 2017
NO. 12-17-00160-CV
BUFORD TYRONE BLAYLOCK,
Relator
V.
HON. CARTER W. TARRANCE,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
Buford Tyrone Blaylock; who is the relator in Cause No. B-15,746, pending on the docket of the
392nd Judicial District Court of Henderson County, Texas. Said petition for writ of mandamus
having been filed herein on May 24, 2017, and the same having been duly considered, because it
is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED,
ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is,
hereby denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MAY 31, 2017
NO. 12-17-00161-CV
BUFORD TYRONE BLAYLOCK,
Relator
V.
HON. CARTER W. TARRANCE,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
Buford Tyrone Blaylock; who is the relator in Cause No. B-15,747, pending on the docket of the
392nd Judicial District Court of Henderson County, Texas. Said petition for writ of mandamus
having been filed herein on May 24, 2017, and the same having been duly considered, because it
is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED,
ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is,
hereby denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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