Saturday, July 5, 2014

Mandamus Available When Trial Court Refuses to Decide a Motion

Is mandamus available if a trial court refuses to rule on a motion?

Yes.  The act of considering and ruling on a properly filed motion is a ministerial act. In re Bonds, 57 S.W.3d 456, 457 (Tex. App. – San Antonio 2001, orig. proceeding).  Mandamus will issue when there is a legal duty to perform a non-discretionary act, a demand for performance, and a refusal to act.  O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992).  Although a trial court has a reasonable time within which to perform its ministerial duty to rule on a pending motion, In re Guetersloh, 326 S.W.3d 737, 740-41 (Tex. App.--Amarillo 2010, orig. proceeding), a trial court commits a clear abuse of discretion when it refuses to rule on a properly filed motion. See Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992).  There is no adequate remedy at law for a trial court’s failure to rule because “[f]undamental requirements of due process mandate an opportunity to be heard.”  See In re Christensen, 39 S.W.3d 250, 251 (Tex. App. – Amarillo 2000, orig. proceeding) (citing Creel v. Dist. Atty. for Medina Cnty., 818 S.W.2d 45, 46 (Tex. 1991)).

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