In re Robert D. Sheppard, M.D. & Emcard, Inc.--Appeal from 151st District Court of Harris County

In The

Court of Appeals

For the

First District of Texas

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NO. 01-05-00375-CV

NO. 01-05-00449-CV

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IN RE ROBERT D. SHEPPARD, M.D. AND EMCARE, INC., Relators

Original Proceeding on Petitions for Writ of Mandamus

or for Writ of Prohibition

CONCURRING OPINIONI agree with the majority decision to deny relators petitions, but would deny the petition for a writ of mandamus because relators have not demonstrated a clear right to relief. Well-settled principles demand that a relator who seeks relief in an original proceeding demonstrate a clear right to the action that the relator seeks to compel or to foreclose. See Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996); Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). To warrant the relief requested by writ of mandamus here, relators must conclusively establish that the trial court had an unequivocal and ministerial duty to surrender jurisdiction either because it was undisputed that Ochoa never expected to serve Cooper, see Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962), or because of lack of demonstrated intent by Ochoa to serve Cooper. See M.O. Dental Lab. v. Rape, 139 S.W.3d 671, 674 (Tex. 2004). Because relators have not conclusively established either contention, I would deny their petition for a writ of mandamus.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Alcala.

Chief Justice Radack, concurring.