in Re Kenneth Wylie
06-21-00092-CR
Tex. App.—WacoSep 1, 2021Background
- Relator Kenneth Wylie filed an original petition for writ of mandamus (Aug. 19, 2021) against the Hon. J. Clay Gossett, alleging the trial court failed to rule on his "Motion for Nunc Pro Tunc."
- Wylie asked this Court to compel the trial court to rule on that motion.
- Mandamus requires a showing of (1) clear abuse of discretion and (2) lack of an adequate appellate remedy.
- Wylie’s petition omitted the Rule 52.3(j) certification that factual statements are supported by competent evidence and failed to include required certified/sworn copies in the appendix and record per Rules 52.3(k)(1)(A) and 52.7(a)(1).
- Wylie also did not provide proof that he brought the unruled motion to the trial court’s attention as required.
- Because the mandamus record was inadequate and relator did not show entitlement to relief, the Court denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus is warranted for an unruled motion for nunc pro tunc | Wylie: trial court failed to rule; mandamus should compel ruling | Trial court/Respondent: relator must show clear abuse and no adequate remedy; record insufficient | Denied — relator failed to establish right to mandamus |
| Compliance with appellate-record/authentication rules | Wylie: submitted petition but omitted required certification and supporting documents | Rules require strict compliance with Rule 52 (certification, certified orders, material filings) | Denied — failure to comply with Rule 52 fatal to mandamus petition |
| Proof of raising the issue in trial court | Wylie: alleged trial court inaction but provided no proof he brought matter to judge’s attention | Mandamus requires proof that relator sought trial-court action before mandamus | Denied — no evidence relator notified trial court; insufficient record |
Key Cases Cited
- In re Blakeney, 254 S.W.3d 659 (Tex. App.—Texarkana 2008) (orig. proceeding) (mandamus standards and enforcing record requirements)
- Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (mandamus may issue only for clear abuse and no adequate remedy)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (relator’s burden to provide sufficient record for mandamus)
- In re Pilgrim’s Pride Corp., 187 S.W.3d 197 (Tex. App.—Texarkana 2006) (orig. proceeding) (record sufficiency in mandamus proceedings)