In Re: Mahmud Ameen Seifullah, a/k/a James Lee Powell--Appeal from 188th District Court of Gregg County

NO. 12-06-00344-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: MAHMUD AMEEN SEIFULLAH,

A/K/A JIMMIE LEE POWELL, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

In this original mandamus proceeding, Mahmud Ameen Seifullah, also known as Jamie Lee Powell, complains that the Gregg County District Clerk did not issue summons and complaint and serve the defendants in the underlying action. He further complains that the 188th Judicial District Court of Gregg County, Texas has failed to issue an order on the Plaintiff s Motion For Court Order[ed] Lien On Estate[ ]s Financial Royalties. He seeks a writ of mandamus against the Gregg County District Clerk and the trial court to require the performance of these acts. We deny the writs.

The District Clerk

A court of appeals has the authority to issue writs of mandamus against a judge of a district or county court in the court of appeals district and all writs necessary to enforce its jurisdiction. Tex. Gov t Code Ann. 22.221 (Vernon 2004). A district clerk is not specifically identified as one against whom a court of appeals may issue writs of mandamus. See id. Therefore, in order for a district clerk to fall within our jurisdictional reach, it must be established that the issuance of the writ of mandamus is necessary to enforce our jurisdiction. See id.; In re Coronado, 980 S.W.2d 691, 692-93 (Tex. App. San Antonio 1998, orig. proceeding). The record is insufficient to show that the exercise of our mandamus authority against the Gregg County District Clerk is necessary to enforce our jurisdiction. Consequently, we have no authority to issue a writ of mandamus to require the District Clerk to issue summons and complaint and serve the defendants in the underlying action.

The Trial Court

Mandamus is an extraordinary remedy available only in limited circumstances involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A relator must satisfy three requirements to establish his entitlement to the issuance of a writ of mandamus: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). Also, a party requesting relief must provide a sufficient record to establish his entitlement to mandamus. Walker, 827 S.W.2d at 837.

When a motion is properly filed and pending before a trial court, the act of considering and ruling upon the motion is a ministerial act. See Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). A trial court must consider and rule upon a motion within a reasonable period of time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App. Houston [1st Dist.] 1992, orig. proceeding). Whether a reasonable time period has lapsed depends on the circumstances of each case. Id. To be entitled to mandamus relief in the instant proceeding, Seifullah must show that the trial court had a duty to rule on the motion and either refused to act after a request for performance or made it clear that any such request was futile. See Weber v. Snell, 539 S.W.2d 363, 367 (Tex. Civ. App. Houston [1st Dist.] 1976, orig. proceeding) (citing Harney v. Pickens, 120 Tex. 268, 37 S.W.2d 717, 718 (Tex. 1931)).

The record in this proceeding does not contain a copy of the motion allegedly filed by Seifullah. See Tex. R. App. P. 52.7(a)(1). Moreover, the record does not show a request for a ruling from the trial court followed by a refusal to rule. See Tex. R. App. P. 52. Consequently, Seifullah has not shown that he is entitled to the relief he seeks against the trial court.

Disposition

The writs of mandamus are denied.

SAM GRIFFITH

Justice

Opinion delivered October 25, 2006.

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

(PUBLISH)