In Re: Barbara Strain, Individually and as Administrator of the Estate of Bobby Strain, Steve Strain, Stanley Strain and Crystal Strain, Wrongful Death Beneficiaries--Appeal from 369th District Court of Anderson County

NO. 12-03-00334-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN RE: BARBARA STRAIN, INDIVIDUALLY

AND AS ADMINISTRATOR OF THE

ESTATE OF BOBBY STRAIN, DECEASED

 
ORIGINAL PROCEEDING

STEVE STRAIN, STANLEY STRAIN,

AND CRYSTAL STRAIN, BY AND THROUGH

THEIR ATTORNEY OF RECORD,

CHARLES W. NICHOLS

 
MEMORANDUM OPINION

Relators Barbara Strain, individually and as administrator of the estate of Bobby Strain, deceased, and Steve Strain, Stanley Strain, and Crystal Strain, by and through their attorney of record, Charles W. Nichols seek a writ of mandamus requiring the trial court to (1) withdraw its expulsion of Relators' counsel from the courtroom and (2) withdraw its order of abatement or set an accelerated schedule within which Relators may reply and show why such order of abatement should not be withdrawn. Relators also complain that the trial court refused to rule on their motion to compel and motion for sanctions. We deny the writ.

 
Availability of Mandamus

Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion where there is no adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 839-41 (Tex. 1992). A relator who attacks the ruling of a trial court as an abuse of discretion labors under a heavy burden. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). To establish an abuse of discretion, the relator must show that the trial court's decision was "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Walker, 827 S.W.2d at 839 (quoting Johnson, 700 S.W.2d at 917). A trial court has no discretion in determining what the law is or applying the law to the facts. Walker, 827 S.W.2d at 840. Therefore, a "clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion." Id.

After reviewing Relators' petition, the record, and applicable law, we conclude that Relators have failed to demonstrate that the trial court abused its discretion. Therefore, Relators' petition for writ of mandamus is denied.

 

DIANE DEVASTO

Justice

 

Opinion delivered October 29, 2003.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

 
(PUBLISH)