in Re Elizabeth Thomas ( 2019 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 8,
2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00004-CV
IN RE ELIZABETH THOMAS, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
127th District Court
Harris County, Texas
Trial Court Cause No. 2017-82388
MEMORANDUM OPINION
On January 3, 2019, relator Elizabeth Thomas filed a petition for writ of mandamus
in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017); see also Tex. R.
App. P. 52. In the petition, relator asks this court to compel the Honorable R.K. Sandill,
presiding judge of the 127th District Court of Harris County, to vacate a Notice of Oral
Hearing on Status Conference scheduled for January 9, 2019, that was filed on December
14, 2018. Relator argues that this notice of hearing is void because it was issued after the
trial court’s plenary jurisdiction had expired. Relator also has filed a motion asking this
court to stay the notice of hearing.
As the party seeking relief, relator had the burden of providing this court with a
sufficient record to establish their right to mandamus relief. See Walker v. Packer, 827
S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); Tex. R. App. P. 52.7(a)(1) (relator must
file with petition “a certified or sworn copy of every document that is material to the
relator’s claim for relief and that was filed in any underlying proceeding”).
“Mandamus relief generally requires a predicate request for an action and a refusal
of that request.” In re Le, 335 S.W.3d 808, 814–15 (Tex. App.–Houston [14th Dist.] 2011,
orig. proceeding) (citing Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990)).
“But, the requirement that there be a predicate request and adverse ruling is excused when
such a request would have been futile and the trial court's refusal little more than a
formality.” Id. at 815. Relator has not provided a record showing that she has requested
the trial court to vacate the notice of hearing for the reasons stated in her petition or that
doing so would be futile. Because relator has not shown that she satisfied the requirement
of a predicate request and refusal by the trial court, relator is not entitled to the mandamus
relief she requests. See In re The Office of the Attorney General, No. 14-16-00622-CV,
2016 WL 5853304, at *1–2 (Tex. App.—Houston [14th Dist.] Oct. 6, 2016, orig.
proceeding) (per curiam) (mem. op.); In re Crestline Direct Fin., L.P., No. 14-16-00776-
CV, 2016 WL 5724964, at *1 (Tex. App.—Houston [14th Dist.] Oct. 3, 2016, orig.
proceeding) (per curiam) (mem. op.).
Accordingly, we deny relator’s petition for writ of mandamus and motion for stay.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.
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