In Re: Richard M. King, Jr.--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-06-00061-CV

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IN RE: RICHARD M. KING, JR.

Original Mandamus Proceeding

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

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Richard M. King, Jr., has filed a petition for writ of mandamus. King asks this Court to order the Honorable Jim Lovett, presiding judge of the 6th Judicial District Court for the State of Texas, to recuse himself in an original quo warranto // proceeding King has filed in that court. King asserts Judge Lovett's refusal to recuse himself, as well as Judge Lovett's refusal to refer the recusal motion to the regional administrative judge, amounts to an abuse of discretion that must be corrected by this Court.

Mandamus will issue only when the mandamus 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 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839 40 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion, or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (orig. proceeding). Mandamus may issue even on questions of first impression if, as a matter of law, the trial court erred in its analysis and reached an erroneous legal conclusion. Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1995) (orig. proceeding). The party applying for the writ has the burden of showing the trial court abused its discretion. In re Bunzl USA, Inc., 155 S.W.3d 202, 207 08 (Tex. App. El Paso 2004, orig. proceeding); In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 935 (Tex. App. Tyler 2005, orig. proceeding).

King has not provided this Court with a record of the proceedings from the trial court below. We lack copies of King's recusal motion, the alleged order signed by Judge Lovett denying King's motion, or any reporter's record of the lower court's proceedings. King's petition does not even allege the cause number of the case from which King contends Lovett should be recused. Without any record of the lower court's proceedings, we cannot begin to assess the merits of such claims. In short, because King has failed to meet his initial burden of providing an adequate record from which we ascertain the appropriateness of the trial court's conduct, we must deny the petition for writ of mandamus.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 12, 2006

Date Decided: June 13, 2006