Form 27-1

Under Tex. R. App. P. 52, in all original proceedings in the appellate courts a single document serves as the petition and brief. The petition should follow the specific formatting and filing requirements stated in Tex. R. App. P. 9 (e.g., use of 14-point font). For a corresponding mandamus record, see form 27-2. For a corresponding verification of mandamus record, see form 27-3. Except under limited cir­cumstances, all documents must now be electronically filed in the appellate courts, and the require­ments for doing so are set forth in Tex. R. App. P. 9. In the caption, the proper court of appeals (or the Supreme Court of Texas) should be designated. (If emergency relief is needed, a separate motion for that relief is required. Tex. R. App. P. 52.10. See form 27-4.)

No. __________

In the [Court of Appeals/Supreme Court of Texas]

[number] Judicial District
[city], Texas

In re [name of party seeking relief], Relator
________________________

Petition for Writ of Mandamus

Original Proceeding from Cause No. [trial court case number]
[trial court designation], [name of county] County, Texas

[Name]
State Bar No.:
[Email address]
[Mailing address]
[Telephone]
[Fax]

   
Attorney for Relator

[Include as applicable: Oral Argument [Requested/Waived]]

Request for/Waiver of Oral Argument

[Request for/Waiver of] Oral Argument

Relator, [name], requests the Court to grant oral argument in this matter. In light of the nature and complexities of the issues presented and the size of the overall appellate record, Relator asserts that oral argument will assist the Court by clarifying the issues, and it will facilitate the Court’s understanding of the facts as relevant to those issues.

Relator, [name], waives oral argument in this matter unless the Court determines it to be necessary to a meaningful review of the issues presented.

Identity of Parties and Counsel

Identity of Parties and Counsel

Relator certifies that the following is a complete list of the parties, the attorneys, and any other person who has any interest in the outcome of this lawsuit:

Attorney(s) for Respondent having appeared in the [trial/appellate/trial and appellate] court(s): [name and firm or office name at time of appearance]

Attorney(s) currently appearing for Respondent: [name, firm, or office name, mailing address, telephone number, and email address]

Other attorney(s) for Relator having previously appeared in the [trial/appellate/trial and appel­late] court(s) include: [name and firm or office name at time of appearance]

Other attorney(s) for real party in interest having previously appeared in the [trial/appellate/trial and appellate] court(s): [name and firm or office name at time of appearance]

Abbreviations

Abbreviations

Relator has filed a separate Mandamus Record (“MR”) and those documents included within that record will be referenced as MR 1 through MR [number], reflecting the numbers assigned to each document compiling the Mandamus Record, which is being filed simultane­ously with this Petition in [number of volumes] volume(s).

Matters within the hearing transcripts included as part of the Mandamus Record will be more specifically referenced as, for example, “MR 4:59,” reflecting Mandamus Record Item 4, followed by the page number on which the relevant information is found consistent with the page number assigned by the court reporter preparing the transcripts.

For convenience, Relator, [name], will be referred to as “[name],” Real Party in Inter­est, [name], will be referred to as “[name],” and Respondent, [name], will be referred to as “Judge [name]” or the “trial court.”

Table of Contents

Table of Contents

[Request for/Waiver of] Oral Argument   [page number]

Identity of Parties and Counsel   [page number]

Abbreviations   [page number]

Table of Contents   [page number]

Index of Authorities   [page number]

Relator’s Statement of the Case   [page number]

Issue(s) Presented   [page number]

Relator’s Statement of Facts   [page number]

Summary of the Arguments   [page number]

Standard of Review   [page number]

Argument and Authorities   [page number]

Issue One: [state issue one]   [page number]

Conclusion and Prayer   [page number]

Certificate of Competent Evidence   [page number]

Certificate of Compliance   [page number]

Certificate of Service   [page number]

Verification   [page number]

Appendix   [page number]

[Title of any order complained of leading to mandamus petition]   [page number]

[Title of order or opinion of the court of appeals, if filing in the
Supreme Court]   [page number]

Mandamus Record   Filed as Separate Volume

Index of Authorities

Index of Authorities

Constitutions
[List citations to any constitutions.]

Texas Statutes
[List citations to any Texas statutes.]

Federal Statutes
[List citations to any federal statutes.]

Texas Cases
[List citations to any Texas cases.]

Federal Cases
[List citations to any federal cases.]

Other Sources
[List citations to any other sources.]

Statement of Jurisdiction

Relator’s Statement of Jurisdiction

This Court has jurisdiction to issue a writ of mandamus. Tex. Const. art V., § 3(a); Tex. Gov’t Code § 22.002(a), (e).

This Petition for Writ of Mandamus was first filed in the Court of Appeals for the [num­ber] Judicial District, which denied the relief requested. See Tex. R. App. P. 52.3(e). The jus­tices who participated in the decision were [list justices]. The author of the [majority] opinion by the Court was [name]. [Include as applicable: The author of the concurring opinion by the Court was [name]./The author of the dissenting opinion by the Court was [name].] The opin­ion is [unpublished/reported at [specify]]. The Court of Appeals ordered [specify disposition of the case by the court of appeals]. A copy of the order denying the petition is included in the appendix under tab [number].

Statement of the Case

Relator’s Statement of the Case

Nature of the Underlying Proceeding.      [Describe the nature of the underlying suit, e.g., a suit for divorce or a suit affecting the parent-child relationship, including a brief description of the relevant filings and proceedings.]

Respondent.      The Respondent is the Honorable [name], Presiding Judge of the [court desig­nation and county in which court is located].

Respondent’s Actions.      [Describe the trial court’s actions as challenged by mandamus, e.g., Respondent failed to grant a mandatory transfer of the suit affecting parent-child relationship to Harris County pursuant to Tex. Fam. Code § 155.201 where a timely motion to transfer was filed, the evidence established that the child had resided in Harris County for more than six months, and no controverting affidavit was filed.]

Issue[s] Presented

Issue[s] Presented

Issue One:      [State each issue on which it is alleged the trial court erred as a matter of law, e.g., The trial court clearly abused its discretion by failing to grant a mandatory transfer of the suit affecting parent-child relationship as provided by Tex. Fam. Code § 155.201 in response to a timely motion and evidence establishing that the child had lived in Harris County for more than six months as the time suit was filed.]

Statement of Facts

Relator’s Statement of Facts

[Include a concise statement of the relevant facts supporting mandamus relief, including a chronology of the proceedings, all supported by citations to the mandamus record, which should include all relevant pleadings, relevant orders, hearing transcripts, and admitted exhib­its.]

Summary of Relator’s Arguments

Summary of the Relator’s Arguments

[Provide a brief summary of the arguments made within the body of the petition.]

Standard of Review

Standard of Review: Availability of Mandamus Relief

Requisites to mandamus relief are a showing of (1) a legal duty to perform a nondiscre­tionary act, (2) a demand for performance of a nondiscretionary act, and (3) a refusal to per­form after such demand was made. Erbs v. Bedard, 760 S.W.2d 750, 755 (Tex. App.—Dallas 1988) (orig. proceeding). Mandamus relief is available when under the circumstances of the case the facts and law permit the trial court to make but one decision—and the trial court has refused to make that decision—and remedy by appeal to correct the ruling is inadequate. Prof­fer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding).

Mandamus relief is available if the trial court clearly abuses its discretion, either in resolving factual issues or determining legal principles, and there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). A trial court clearly abuses its discretion if “it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id. at 839. However, as to legal issues, an error amounting to an abuse of discretion can be as simple as misinterpreting or misapplying the law. Triantaphyllis v. Gamble, 93 S.W.3d 398, 402 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Thus, to show abuse of discretion in determining legal principles, Relator must show the trial court failed to analyze or apply the law correctly. Walker, 827 S.W.2d at 840. A trial court has no “discre­tion” in determining what the law is or applying the law to the facts. Id.

In addition, Relator must also show [he/she] has no other adequate remedy at law. Id. Relator’s arguments regarding [his/her] lack of an adequate remedy are included within [his/her] arguments regarding the trial court’s abuse of discretion below.

Arguments and Authorities

Arguments and Authorities

ISSUE ONE: [restate issue one.]

[Include all legal arguments supporting the issue, including citation to the mandamus record as necessary to support the proceedings and rulings relevant to the issue presented.]

Conclusion and Prayer

Conclusion and Prayer

Based on the arguments asserted herein, Relator, [name], requests this Court to (1) grant mandamus relief; (2) direct the trial court to set aside the [title and date of order com­plained of] and (3) direct the trial court to [state other relief sought.]

Relator, [name] requests such other relief to which [he/she] may show [himself/herself] entitled.

   
[Name]
Attorney for Relator
State Bar No.:
[Email address]
[Address]
[Telephone]
[Fax]

Certificate of Competent Evidence

Pursuant to Tex. R. App. P. 52.3(j), I certify that I have reviewed this Petition for Writ of Mandamus and concluded that every factual statement in the response is supported by com­petent evidence included in the appendix and/or Mandamus Record and any supplements thereto.

   
[Name of attorney]

Certificate of Compliance

Pursuant to rule 9 of the Texas Rules of Appellate Procedure, I certify that the word count in this Petition for Writ of Mandamus, excluding the caption and introductory matters, signature, proof of service, certification, certificate of compliance, and appendix, totals [num­ber] words.

   
[Name of attorney]

Certificate of Service

I certify that a true copy of this Petition for Writ of Mandamus was served in accor­dance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party’s lead counsel on the [specify] day of [month, year] as follows:

Name of person served: [[name of lead attorney], attorney for [name of party]/[name of unrepresented party]]

Address of person served: [address]

Method of service: [by electronic filing manager/by email at [email address]/by fax at [fax number]/by personal delivery at [address]/by commercial delivery service at [address]/by certified mail at [address]/by first-class mail at [address]]

   
[Name of attorney]

Verification of Petition for Writ of Mandamus

State of Texas)

   )

COUNTY OF [county]    )

BEFORE ME, the undersigned notary, on this day personally appeared [name of attor­ney], a person whose identity is known to me. After I administered the oath to [him/her], upon [his/her] oath, [he/she] said the following:

“My name is [name of attorney], and I am capable of making this affidavit. I have read the foregoing Petition for Writ of Mandamus and the facts stated within it are within my per­sonal knowledge, are true and correct and supported by the documents in the Mandamus Record.”

   
[Name of attorney]

SUBSCRIBED AND SWORN to before me this [specify] day of [month, year].

   
Notary Public, State of Texas