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

NO. 12-06-00425-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 Jimmie Lee Powell, complains that the trial court has failed to issue an order on Seifullah s Plaintiff s Motion to Request the Court to Order Summons and Complaint to be Served Upon Defendants and Plaintiff s Motion For Court Order[ed] Lien on Estate s Financial Royalties. 1 The motions were signed on November 6, 2006. Seifullah alleges that the motions were filed with the district clerk, but the record does not show the date of filing.

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). 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).

To be entitled to mandamus in this proceeding, Seifullah must show that the trial court 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)). Merely alleging that something was filed with or mailed to the district clerk does not satisfy that requirement. In re Chavez, 62 S.W.3d 225, 228 (Tex. App. Amarillo 2001, orig. proceeding). The record does not show a request for a ruling from the trial court followed by a refusal to rule. Consequently, Seifullah has not shown that he is entitled to mandamus relief. Accordingly, the petition for writ of mandamus is denied.

BRIAN HOYLE

Justice

Opinion delivered January 24, 2007.

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

(PUBLISH)

1 The respondent is the Honorable David Scott Brabham, Judge of the 188th Judicial District Court, Gregg County, Texas.