Bandit Bankruptcy Lawyer James “I Ain’t No” Pope is Representin’ Harris County Child Rapist Boris Clewis

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from “the denial by operation of law” of appellant Boris Twain Clewis’s “plea in abatement and, Texas Civil Prac. & Rem. Code §§ 27.001-.011’s Motion to Dismiss.”

The motion to dismiss is not contained in the clerk’s record, but appellant’s notice of appeal stated he mailed the motion to the district clerk on January 22, 2018 for filing.

The notice of appeal also states no hearing has been held and no ruling has been made on the motion to dismiss.

A trial court must rule on a motion to dismiss under Texas Civil Practice and Remedies Code section 27.003 no later than the 30th day following the date of the hearing on the motion.

Tex. Civ. Prac. & Rem. Code Ann. § 27.005(a).

If the court does not rule on the motion to dismiss in the time prescribed by section 27.005, the motion is considered to have been denied by operation of law, and the moving party may appeal.

Id. § 27.008(a).

Because no hearing has been held on appellant’s motion to dismiss, the time under section 27.005(a) for the trial court to rule on the motion has not begun.

As a result, the motion cannot have been denied by operation of law under section 27.008(a).

See Puig v. Hejtmancik, No. 14-17-00358-CV, 2017 WL 5472781, at *2 (Tex. App.—Houston [14th Dist.] Nov. 14, 2017, no pet.);

Deuell v. Texas Right to Life Committee, Inc., No. 01-15-00011-CV, 2015 WL 778367, at *1-*2 (Tex. App.—Houston [1st Dist.] Feb. 24, 2015, no pet.).

On March 20, 2018, we notified the parties that we would dismiss this appeal for lack of jurisdiction unless any party demonstrated, by April 2, 2018, meritorious grounds for retaining the appeal.

Appellant filed a document on April 2, 2018, entitled “Motion to Direct Clerk & Court Reporter to Supplement the Record and Motion for a 45-Day Extension of Time.”

The motion neither establishes that we have jurisdiction nor requests documents that would show our jurisdiction.

No other response has been received.

The appeal is DISMISSED for lack of jurisdiction.

Appellant’s motion regarding the record is DENIED AS MOOT.

PER CURIAM

Panel consists of Justices Boyce, Donovan, and Wise

MEMORANDUM OPINION

On October 22, 2014, relator Boris Twain Clewis filed a petition for writ of mandamus in this court.

See Tex. Gov’t Code Ann. § 22.221;

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 rule on relator’s plea in abatement.

In his petition, relator states that he is a beneficiary of the Estate of Redell Clewis, Sr., which has been pending in Probate Court No. 3 of Harris County, Texas, since 1999.

A number of taxing authorities filed suit to collect delinquent ad valorem taxes against relator on July 29, 2013, in the 127th District Court. Relator claims that he filed a plea in abatement and a motion requesting a hearing on his plea in abatement in the 127th District Court on July 23, 2014, because Probate Court No. 3 acquired dominant jurisdiction in 1999.

Relator further states that he filed another motion objecting to the trial court’s refusal to rule on his plea in abatement.

To be entitled to mandamus relief, the 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).

A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act.

In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding);

Ex parte Bates, 65 S.W.3d 133, 134 (Tex. App.—Amarillo 2001, orig. proceeding).

To be entitled to mandamus relief compelling a trial court to rule on a properly filed motion, relator must establish that the trial court

(1) had a legal duty to rule on the motion;

(2) was asked to rule on the motion;

and

(3) failed or refused to rule on the motion within a reasonable time.

In re Layton, 257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding);

In re Molina, 94 S.W.3d

885, 886 (Tex. App.—San Antonio 2003, orig. proceeding).

It is relator’s burden to provide this court with a sufficient record to establish his right to mandamus relief.

See Walker v Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).

Relator has not included a copy of the plea in abatement, motion for a hearing, or motion objecting to the trial court’s refusal to rule on his plea—file-stamped or otherwise—with his petition.

See Tex. R. App.P. 52.3(k)(1).

Without a file-stamped copy of this plea in abatement and his motions, relator has not shown that such documents are pending in the trial court.

See Blakeney, 254 S.W.3d at 661−62.

Therefore, relator has not shown that the trial court had a duty to rule on his plea in abatement or his motions.

Relator further asserts that the trial court has no discretion to deny his plea to the jurisdiction.

While we have jurisdiction to direct the trial court to make a decision, we may not tell the trial court how to rule on his plea in abatement.

See In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.—San Antonio 1998, orig. proceeding).

Relator has not shown that he is entitled to mandamus relief.

Accordingly, we deny his petition for writ of mandamus.

PER CURIAM

Panel consists of Chief Justice Frost and Justices Christopher and Busby.

M E M O R A N D U M    O P I N I O N

January 29, 2010, relator, Boris Twain Clewis, filed a petition for writ of mandamus in this Court.

See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52.

In the petition, relator asks this Court to compel the Honorable Dan Hinde, presiding judge of the 269th District Court of Harris County, to sustain his plea in abatement.1

Relator is incarcerated in the Texas Department of Criminal Justice, Institutional Divison, and is proceeding pro se.

1 Relator’s petition names the Honorable John T. Wooldridge as the respondent. However, Judge Dan Hinde is currently the presiding judge of the 269th District Court.

Relator states that he is a person interested in the Estate of Redell Clewis, Sr., cause number 307,615, in Probate Court No. 3 of Harris County.

Relator is the son of Redell Clewis, Sr. and is a devisee named in Clewis’ will.

According to relator, his father died on June 30, 1999, and the will was admitted to probate on July 16, 1999.

Relator is the plaintiff in another suit pending in Probate Court No. 3 in cause no. 307,615-401, which he filed on May 21, 2001.

Relator states that the estate is believed to be in excess of $1,000,000.

On December 3, 2009, relator was served with a lawsuit in Cause No. 2009-60917 in the 269th District Court filed by Harris County to collect delinquent and ad valorem taxes in the amount of $7,558.10.

Relator filed an answer to the tax suit, along with a plea in abatement, motion to dismiss for want of jurisdiction, and/or motion to transfer to Probate Court No. 3.

The certificate of service shows that relator’s answer, along with the accompanying motions, was mailed to the Harris County District Clerk on December 4, 2009.

Relator received notice of the trial setting in the tax suit for February 26, 2010, in the tax master court.

The scheduling order for relator’s case pending in Probate Court No. 3 states that the pretrial conference is set for April 12, 2010.2

Relator seeks to abate the tax suit because Probate Court No. 3 acquired dominate jurisdiction.

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court abused its discretion and he has no adequate remedy by appeal.

In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding).

Relator has not shown that the trial court denied his plea in abatement or that his motion has even

2 The record shows that the estate administrator filed suit in cause number 307,615-402, which also is pending in Probate Court No. 3.

That case is also set for a pretrial conference on April 12, 2010.

been presented to the trial court for a ruling.3

The right to mandamus relief generally requires a predicate request for some action and a refusal of that request.

In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding) (per curiam).

Therefore, relator has not shown any abuse of discretion by the trial court.

Moreover, relator’s petition does not comply with the Texas Rules of Appellate Procedure.

See Tex. R. App. P. 52.7(a)(1)

(requiring relator to file with petition certified or sworn copy of every document that is material to relator’s claim for relief and was filed in any underlying proceeding).

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus.

Accordingly, we deny relator’s petition for writ of mandamus.

PER CURIAM

Panel consists of Justices Yates, Seymore, and Brown.

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:13-cv-02308