In Re City of Houston v. the State of Texas

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
November 1, 2024.

In The

Fourteenth Court of Appeals

NO. 14-24-00714-CV

IN RE CITY OF HOUSTON, Relator

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
165th District Court
Harris County, Texas
Trial Court Cause No. 2024-22951

MEMORANDUM OPINION

On September 25, 2024, relator City of Houston 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 (1) compel the Honorable Ursula A.
Hall, presiding judge of the 165th District Court of Harris County, to rule on its
Rule 91a motion to dismiss and plea to the jurisdiction and (2) to stay all trial court
proceedings until the respondent rules. See Tex. R. Civ. P. 91a.1. We deny
relator’s petition.
Standard of Review

Generally, to be entitled to mandamus relief, relator must establish that
(1) the trial court abused its discretion; and (2) relator has no adequate remedy by
appeal. In re Walsh, No. 14-23-00455-CV, 2023 WL 4570459, at *2 (Tex. App.—
Houston [14th Dist.] July 18, 2023, orig. proceeding); see In re Christianson Air
Conditioning & Plumbing, LLC, 639 S.W.3d 671, 681 (Tex. 2022) (orig.
proceeding).
The trial courts are required to rule “within a reasonable time” on motions
that are properly filed. In re Walsh, 2023 WL 4570459 at *2. When a motion is
properly filed and pending before a trial court, the act of giving consideration to
and ruling upon that motion is a ministerial act, and mandamus may issue to
compel the trial court to act. Id. To establish that the trial court abused its
discretion by failing to rule, the relator must show that the trial court: (1) had a
legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and
(3) failed or refused to do so. Id.
“The test for determining what time period is reasonable is not subject to
exact formulation, and no ‘bright line’ separates a reasonable time period from an
unreasonable one.” Id. What is considered a reasonable amount of time is
dependent upon the circumstances of each case. Id.
Analysis
In its motion to dismiss and plea to the jurisdiction, relator argued that the
Texas Tort Claims Act applies to real party in interest’s premises liability lawsuit

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and that real party in interest failed to meet the act’s notice requirement, which is a
jurisdictional prerequisite to suit. Relator’s motion to dismiss invoked Texas Rule
of Civil Procedure 91a. In its petition for writ of mandamus, relator complains that
the trial court has not ruled on its motion to dismiss by the deadline required by
rule 91a.3, despite a reasonable amount of time in which to do so, and that the
court’s failure to timely rule is an abuse of discretion justifying mandamus relief.
Rule 91a.3 provides that “[a] motion to dismiss must be. . . granted or denied
within 45 days after the motion is filed.” See Tex. R. Civ. P. 91a.3. A party has the
ability to seek mandamus relief based on a trial court's failure to rule on a Rule 91a
motion within the 45-day period.” San Jacinto River Auth. v. Lewis, 572 S.W.3d
838, 841 (Tex. App.—Houston [14th Dist.] 2019, no pet.); see Reaves v. City of
Corpus Christi, 518 S.W.3d 594, 602 (Tex. App.—Corpus Christi 2017, no pet.)
(“[T]here is the possibility that mandamus relief is available to ensure that the trial
court complies with its duty to timely rule.”).
Relator filed its Rule 91a motion to dismiss on May 6, 2024. Under Rule
91a, the trial court’s deadline to rule was June 20, 2024. See Tex. R. Civ. P.
91a.3(c) (“A motion to dismiss must be. . . granted or denied within 45 days after
the motion is filed.”). Relator states in its petition it still has not received a ruling,
even though more than three months after the deadline for the trial court to rule has
passed.
Although a trial court’s failure to timely rule on a rule 91a motion to dismiss
is redressable by mandamus, a relator seeking such relief must demonstrate it
demanded performance of the ministerial act and that the court failed or refused to
perform. In re Walsh, 2023 WL 4570459 at *2; In re Dong Sheng Huang, 491
S.W.3d 383, 385 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding). The
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mandamus record does not establish that relator set the motion to dismiss for
submission, requested an oral hearing, or that a request for oral hearing was
denied. See In re Dong Sheng Huang, 491 S.W.3d at 385; see also In re Hughes,
No. 07–04–00006–CV, 2004 WL 89289, at *1 (Tex. App.—Amarillo Jan. 20,
2004, orig. proceeding) (holding record did not demonstrate relator brought motion
to trial court’s attention by requesting hearing); In re Harris, No. 14-07-00231-CV,
2007 WL 1412105, at *1 (Tex. App.—Houston [14th Dist.] May 15, 2007, orig.
proceeding) (holding relator not entitled to mandamus relief when record did not
show relator alerted trial court of motion by setting for submission or hearing).
Nor does the record show that relator brought the trial court’s attention to the fact
that it has not timely ruled and requested that the court rule. Because relator has
not shown that it demanded performance, it is not entitled to mandamus relief on
this record.
Accordingly, we deny relator’s petition for writ of mandamus without
prejudice.
PER CURIAM

Panel consists of Justices Jewell, Bourliot, and Zimmerer.

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