In Re: Wayne Ernest Barker--Appeal from 2nd District Court of Cherokee County

NO. 12-07-00373-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: WAYNE ERNEST BARKER,

RELATOR ORIGINAL PROCEEDING

MEMORANDUM OPINION

In this original proceeding, Wayne Ernest Barker alleges that he filed a lawsuit in the trial court, but that the defendants he named in the lawsuit have not been served with citation. He further alleges that he filed a motion on September 10, 2007 requesting the trial court to order the district clerk to issue citation for each defendant and deliver the citations to an officer authorized to serve process. He contends that the trial court has not ruled on his motion and seeks a writ of mandamus requiring the court to order the district clerk to issue and deliver the citations to the appropriate officer.1

Mandamus is an extraordinary remedy and was intended to be available only in situations 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) (orig. proceeding). For Barker to be entitled to relief by mandamus, he must meet two requirements. First, he must show that the trial court clearly abused its discretion. Id. Second, he must show that he lacks an adequate remedy at law, such as an ordinary appeal. See id. Courts of appeals have the power to compel a trial court to rule on a pending motion. In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.-San Antonio 1998, orig. proceeding). However, they may not tell the trial court how to rule on the motion. See In re Castle Prod. Ltd. P ship, 189 S.W.3d 400, 403 (Tex. App. Tyler 2006, orig. proceeding).

Before mandamus may issue to require a trial court to rule on a motion, the relator must establish that the court was asked to perform the act and failed or refused to do so within a reasonable time. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App. San Antonio 1997, orig. proceeding). Here, Barker alleges that he filed the motion on September 10, 2007, but makes no showing that the trial court has had a reasonable time to consider and rule on the motion. Nor does he show that he called the trial court's attention to the motion or requested that a hearing be set to determine its merit. Therefore, Barker has failed to show that the trial court has abused its discretion by failing to rule on the motion. See In re Villareal, 96 S.W.3d 708, 710 (Tex. App. Amarillo 2003, orig. proceeding). Accordingly, Barker s petition for writ of mandamus is denied.

SAM GRIFFITH

Justice

Opinion delivered October 17, 2007.

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

(PUBLISH)

1 The respondent is the Honorable Dwight L. Phifer, Judge of the 2nd Judicial District Court, Cherokee County, Texas.