in Re: Delvin Darnell James

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-08-00111-CV ______________________________ IN RE: DELVIN DARNELL JAMES Original Mandamus Proceeding Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION Delvin Darnell James filed a petition for writ of mandamus complaining of the Harrison County District Clerk's alleged refusal to respond to his motions for a free appellate record, and failure to provide the same. Mandamus is an extraordinary remedy that issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when no other adequate remedy by law is available. State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984). This Court has the authority to issue a writ of mandamus in two instances, the first being when it is necessary to enforce this Court's jurisdiction. Tex. Gov't Code Ann. § 22.221(a) (Vernon 2004). It is James's burden to properly request and show entitlement to the mandamus relief he requests. See generally Johnson v. Fourth District Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). James does not claim the existence of, and does not attach evidence of, an appealable order or notice of appeal. Thus, James has not made a showing that the writ of mandamus is necessary to enforce our jurisdiction. The second instance in which we have authority to issue a writ of mandamus occurs where it is "against a judge of a district or county court in the court of appeals district; or a judge of a district court acting as a magistrate at a court of inquiry in the court of appeals district." Tex. Gov't Code Ann. § 22.221(b) (Vernon 2004). James seeks a writ of mandamus against a district clerk. Because the clerk is not a proper party against which mandamus relief may be brought in this Court, we deny James's petition for writ of mandamus against the Harrison County District Clerk for lack of jurisdiction. In re Phillips, No. 06-07-00057-CV, 2007 WL 1202773 (Tex. App.--Texarkana Apr. 25, 2007, no pet.) (mem. op., not designated for publication). We deny the petition for writ of mandamus. Bailey C. Moseley Justice Date Submitted: October 9, 2008 Date Decided: October 10, 2008 .Ed.2d at 82. Mosser, 893 S.W.2d at 13. Mosser illustrates the fundamental right of a party to receive notice of the pendency of an action sufficient to afford him the opportunity to respond. (1) In this context, the scheduling of a summary judgment hearing is actually more significant than the occurrence of the hearing because the hearing date determines the deadline for any response to the motion-and oral testimony cannot be adduced at the hearing. Tex. R. Civ. P. 166a(c). In this case, Forrester stated categorically through affidavit that he did not have notice of any date of hearing on the summary judgment. This is supported by the record, because the attachment to Oil Con.'s Motion for Summary Judgment which would contain a date for the hearing is blank. Forrester did not appear at the summary judgment hearing, and he did not file or seek to late-file a response to the Motion for Summary Judgment. Further, Oil Con. did not file any response to Forrester's Motion for New Trial or make any effort to rebut his claim that he had no notice of the setting of a hearing date on the Motion for Summary Judgment. No hearing was held on the Motion for New Trial. Thus, the only evidence before this court is Forrester's affidavit attached to his Motion for New Trial. Determining whether to grant or deny a motion for new trial is a matter which falls within the sound discretion of the trial judge. Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992); Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). Although the trial judge's decision will not be disturbed absent an abuse of discretion, Strackbein, 671 S.W.2d at 38, we treat the trial judge's application of law to the facts with less deference than we do the judge's findings of fact. Greiner v. Jameson, 865 S.W.2d 493, 498 (Tex. App.-Dallas 1993, writ denied). The trial judge does not have unbridled discretion to decide a motion for new trial, but instead must rely on guiding rules and principles in reaching his or her decision. Mosser, 893 S.W.2d at 10. Because the record establishes that Forrester had neither actual nor constructive notice of the summary judgment hearing, and in the absence of any appearance of waiver, we conclude that the trial court abused its discretion by failing to grant a new trial. We reverse the trial court's judgment and remand the case for further proceedings. Ben Z. Grant Justice Date Submitted: November 5, 2001 Date Decided: November 6, 2001 Do Not Publish 1. Reaching the same conclusion: Martin v. Martin, Martin & Richards, Inc., 991 S.W.2d 1, 14 (Tex. App-Fort Worth 1997), rev'd on other grounds, 989 S.W.2d 357 (Tex. 1998); Guinn v. Zarsky, 893 S.W.2d 13 (Tex. App.-Corpus Christi 1994, no writ) (agreeing with the reasoning, but distinguishing because the argument was waived below).