IN RE: GUS MENDIZABAL (2016)

MEMORANDUM OPINION

On November 15, 2016, relator Gus Mendizabal filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Kerry Neves, presiding judge of the 10th District Court of Galveston County, to receive and file all papers in his suit against The University of Texas Medical Branch at Galveston (“UTMB”), John Sealy Hospital, and “Unknown Surgeons” for using a defective medical product, set schedule for discovery, and set a date for trial.

To be entitled to mandamus relief, a relator must demonstrate (1) the trial court clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding).

Relator wrote the Galveston County District Clerk, on July 27, 2016, requesting information regarding the status of his case. On August 3, 2016, the District Clerk responded to relator's inquiry, stating that he had looked at relator's case, but did “not see why your case has not gone forth, nor did I see any future settings in this case.” The District Clerk advised relator to contact the court coordinator for the 10th District Court.

Relator wrote the court coordinator, inquiring about his case. Relator states that the court coordinator did not respond to his inquiry. The record does not reflect the reason relator's case does not have a docket control order establishing the schedule for discovery or a trial date. However, relator did not ask about the schedule for discovery or the trial date in his letter to the court coordinator. Relator has not shown that he asked the trial court to set a schedule for discovery or a trial date. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding) (per curiam) (“A party's right to mandamus relief generally requires a predicate request for some action and a refusal of that request.”).

Relator also complains that not all papers he has attempted to file have been received by and filed with the trial court. Relator, however, does not identify what papers he has attempted to file, but were not accepted by the trial court.

Relator has not established that he is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus.

PER CURIAM