in Re: Robert Troy McClure

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00137-CV

                                                ______________________________

                                                                        IN RE:

                                                      ROBERT TROY MCCLURE

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

            Robert Troy McClure has filed a petition for writ of mandamus requesting that this Court order the Honorable Bobby Lockhart, Judge of the 102nd Judicial District of Texas, to “address his complaint.”  We deny the petition.

            McClure filed a complaint against the State of Texas, Texas Department of Justice, Correctional Institutions Division on November 16, 2011.  At that time, McClure was (and remains) an inmate of the Texas Department of Criminal Justice, Telford Unit.  In his complaint, McClure alleges that he was struck in the face by a corrections officer at the Telford Unit and that as a result, he suffered a fractured nose.  McClure further alleges that a second corrections officer conspired with the alleged offending officer to cover up the assault. 

            In his petition for writ of mandamus, McClure complains the trial court has failed to take any action with regard to McClure’s complaint.  McClure alleges the trial court has abused its discretion in choosing to ignore his complaint, and therefore requests this Court to order the Honorable Bobby Lockhart to address his complaint. 

            Mandamus is an extraordinary remedy and will issue only when the record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law.  Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994) (orig. proceeding); In re Fulgium, 150 S.W.3d 252, 254 (Tex. App.—Texarkana 2004, orig. proceeding).  To be entitled to mandamus relief, a relator must show both that he or she has no adequate remedy at law to redress the alleged harm and that he or she seeks to compel a ministerial act, not involving a discretionary or judicial decision.  State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).  An act is ministerial if it constitutes a duty clearly fixed and required by law.  State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding).

            In proper cases, mandamus may issue to compel the trial court to act.  In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); see also Eli Lily & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding) (trial court abuses discretion by refusing to conduct hearing and render decision on motion); Chiles v. Schuble, 788 S.W.2d 205, 207 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding) (mandamus an appropriate remedy to require trial court to hold hearing and exercise discretion).  

            Any such mandamus relief, however, must be predicated on an adequate showing that a request for a ruling has been properly and adequately presented to the trial court and that the court has declined to rule.  Mandamus relief requires existence of a legal duty to perform a nondiscretionary act, a demand for performance of that act, and a refusal to so act.  Foreman v. Jarrett, 796 S.W.2d 316, 317 (Tex.App.—Austin 1990, orig. proceeding). 

            Here, McClure has failed to make any predicate showing necessary for entitlement to mandamus relief.  The record indicates only that McClure’s petition was filed in November 2011.  The District Clerk of Bowie County has confirmed that no citation has been served on the defendant.  The sole pleading in this case is that of McClure’s complaint. McClure has failed to show a legal duty on the part of the trial court to perform a nondiscretionary act.

            We deny the petition for writ of mandamus.

                                                                                    Jack Carter

                                                                                    Justice

Date Submitted:          January 10, 2012        

Date Decided:             January 11, 2012