In Re: Loyd Tom Logan, Jr.--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. 06-03-00066-CV
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IN RE:
LOYD TOM LOGAN, JR.

Original Mandamus Proceeding

 

 

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

Memorandum Opinion by Justice Ross

 

MEMORANDUM OPINION

 

Loyd Tom Logan, Jr., has filed a petition for writ of mandamus in which he asks this Court to order the Honorable Danny P. Crooks to file his application to contest probate of will and to rule on his application to contest probate. Logan also asks us to order the county court to appoint an attorney to represent him and to order the county court to appoint a temporary administrator pending the conclusion of the contest proceedings.

Logan is correct in stating that an interested person may contest the probate of a will for a period of two years after the will is admitted to probate. Tex. Prob. Code Ann. 10, 93 (Vernon 2003). It is not apparent from the information provided that the motion was timely filed, and it does contain a file stamp which indicates it was filed of record May 6, 2003. Further, an attached letter from the county clerk indicates Logan may proceed, but only through counsel Robert Rolston.

We are concerned about an indication in that letter suggesting we dismissed the probate case as a part of a previous mandamus proceeding brought by Logan. In that proceeding, Logan asked us to order the county court to rule on a motion which had been pending for some time. During the pendency of the mandamus proceeding, the court ruled on the motion. We therefore dismissed the mandamus as moot. Obviously, this had no effect on the underlying probate proceeding, except as caused by the county court's ruling on Loyd's motion.

Nevertheless, we cannot base a mandamus on supposition and possibilities. A 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, 132 (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 statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).

The record provided to this Court does not allow us to determine the status of the underlying probate proceeding with sufficient certainty to be able to ascertain whether the motion has been filed or ruled on by the county court or whether it was timely filed at all. The record is likewise ambiguous about the status of the probate proceeding itself before the county court. Under these circumstances, we cannot at this time conclude Logan is entitled to relief on these grounds.

Logan also asks this Court to order the county court to appoint counsel to represent him. The Texas Supreme Court has held that, in some exceptional cases, the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). However, as the court has also recognized recently in Gibson v. Tolbert, No. 02-0190, 2003 WL 1561442 (Tex. Mar. 27, 2003), the existence of the extraordinary circumstances required to authorize such appointment is a fact-based question that is best answered in connection with each specific case.

From the information provided here, we cannot conclude as a matter of law that such extraordinary circumstances are shown as would require us to order the county court to appoint counsel. Our decision on this limited record does not, of course, preclude the county court from doing so should it determine that to be appropriate.

The petition is denied.

 

Donald R. Ross

Justice

 

Date Submitted: May 27, 2003

Date Decided: May 28, 2003