In Re: Steven W. Howell--Appeal from of County

6-96-028-CV Long Trusts v. Dowd In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-01-00147-CV
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IN RE: STEVEN W. HOWELL
Original Mandamus Proceeding
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Grant
O P I N I O N

Steven Howell has filed a petition asking this court to issue a writ of mandamus ordering the Fifth Judicial District Court to honor the mandate of this court issued in connection with our opinion in his lawsuit against the Texas Department of Criminal Justice and others. In that opinion, Howell v. Texas Dep't of Criminal Justice, 28 S.W.3d 125 (Tex. App.-Texarkana 2000, no pet.), we reversed a preservice dismissal of an inmate lawsuit and remanded the cause for further proceedings. The trial court's ruling was based on the alleged prior filing of a substantially similar claim, but was not supported by anything more than a similarity in captions.

Mandamus issues 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).

In this proceeding, Howell asks this court to order the trial court to "faithfully discharge its duty and render its findings of fact and conclusions of law." We cannot ascertain from his petition, however, whether he has sought to take the case to trial or even to obtain service on the parties. In the complete absence of any information to show that the case has been tried before the trial court, we cannot conclude the petitioner is entitled to have the trial court enter findings of fact or conclusions of law. See Tex. R. App. P. 52.3, 52.7. Howell has thus failed to show this court that he is entitled to the relief sought.

The Petition for Writ of Mandamus is denied.

 

Ben Z. Grant

Justice

 

Date Submitted: October 22, 2001

Date Decided: October 23, 2001

 

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