in Re Kenneth Webb, Relator ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00256-CV
IN RE KENNETH WEBB, RELATOR
ORIGINAL PROCEEDING
July 31, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Relator Kenneth G. Webb, appearing pro se, seeks a writ of mandamus
compelling the Honorable William D. Smith, presiding judge of the 84th District Court of
Hansford County, to rule on “all motions that have been filed in case #CV 04982 since”
March 19, 2009. According to relator’s petition, the underlying case is a probate
proceeding.
Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone
Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). To be entitled to relief
by mandamus, the relator must show the trial court clearly abused its discretion, and
that the relator has no adequate remedy by appeal. In re Ford Motor Co., 988 S.W.2d
714, 718 (Tex. 1998) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 840-44
(Tex. 1992) (orig. proceeding). The burden to demonstrate entitlement to mandamus
relief is on the relator. See Walker, 827 S.W.2d at 837. This includes providing an
adequate record to substantiate the allegations contained in the petition for writ of
mandamus. See TEX. R. APP. P. 52.7; Dallas Morning News v. Fifth Court of Appeals,
842 S.W.2d 655, 658 (Tex. 1992) (orig. proceeding).
We will deny relator’s petition. The petition does not comply with the form and
contents requirements for a petition in an original proceeding, as specified by the rules
governing such proceedings. See TEX. R. APP. P. 52.3 (setting out required contents of
petition). Most significantly, the petition is not accompanied by an appendix or record.
Nothing relator has submitted substantiates the allegations contained in his petition.
See also TEX. R. APP. P. 52.3(j) (requiring person filing petition to certify that factual
statements in petition are supported by “competent evidence included in the appendix
or record”). Without an adequate record, relator is wholly unable to prove that Judge
Smith has abused his discretion if indeed he has not ruled on all pending motions.
Because relator has thus failed to demonstrate an abuse of discretion by the trial
court, his petition for writ of mandamus must be, and is, denied.
James T. Campbell
Justice
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