In re Theron Belton--Appeal from 278th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00285-CV

In re Theron Belton

Original Proceeding

DISSENTING Opinion

The trial court signed a judgment on July 28, 2005.[1] It appears from the mandamus record before us that the trial court s intent was to render a final appealable judgment. ( This is a final judgment and no other action will be taken on this case by this court. ) (Letter transmitting the trial court s judgment.)

Whatever the problems were, if any, in getting to this point, we can resolve them on direct appeal from the judgment. A direct appeal is an adequate remedy. According to his supplemental brief, Belton filed a notice of appeal on August 9, 2005. Belton s notice of appeal was file-stamped by the trial court clerk on August 12, 2005, and has been forwarded to this Court. Thus, procedurally, Belton fails to show how relief by direct appeal is inadequate; a necessary element to be able to proceed by mandamus.

Additionally, although the mandamus is about ruling on objections to discovery sought by Belton, we have no way of determining if any of the discovery was actually relevant to the summary judgment issues. Belton has made neither his discovery request nor the responses and objections part of the mandamus record. See Tex. R. App. P. 52.7(a). Belton, therefore, has failed to show himself entitled to any relief by mandamus.

Belton has also failed to establish that the trial court abused its discretion. After Belton s case was dismissed, he appealed to this Court. We held that the dismissal was error and remanded the case to the trial court on January 13, 2003. See cause number 10-02-00071-CV.

Belton then sought the appointment of an attorney to represent him in the district court in this civil case. The trial court denied his request. Belton appealed that ruling. See cause number 10-03-00291-CV. That appeal was dismissed by this Court on December 29, 2004 for want of jurisdiction to review the interlocutory order. This was eight months after Belton requested a hearing on his discovery motion. Belton s motion for rehearing in this Court was denied on January 18, 2005. He then filed a petition for review with the Texas Supreme Court. The petition for review was not denied until August 29, 2005.

I find it hard to determine that the trial court abused its discretion by not ruling on a motion filed by a pro se litigant while the court s order denying that litigant appointed counsel was on appeal. But it seems supremely practical for that same trial court to render a final judgment on a dispositive motion so that this Court can obtain jurisdiction to review the earlier order denying appointed counsel, the ruling on the merits, if appropriate, and even the refusal to rule on the discovery motion filed by Belton, if it is appropriate, which refusal is the subject of this mandamus proceeding.

There seems to be a lot of valid reasons for the trial court to have delayed ruling on Belton s motion, and I am unwilling to say, as the majority concludes, that the trial court abused its discretion under these circumstances.

I would deny the petition. At the very least, we should delay ruling on the mandamus until we can resolve the direct appeal.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed September 21, 2005

[1] The year on the judgment was typed 2004 prior to the trial court writing the month and the day, July 28, in the blank. It was file-stamped by the trial court clerk on August 1, 2005. In the cover-letter to Belton by the district clerk, the clerk noted that the judgment was signed on July 28, 2005. I presume the 2004 on the judgment was a typographical error and that the date the judgment was actually signed was July 28, 2005.