In Re Daniel Aiello v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00312-CV
__________________

IN RE DANIEL AIELLO

__________________________________________________________________

Original Proceeding
County Court of at Law No. 2 of Liberty County, Texas
Trial Cause No. 23DC-CV-00231
__________________________________________________________________

MEMORANDUM OPINION

Relator Daniel Aiello, who is an inmate proceeding pro se on a statement of

inability to afford payment of costs, seeks mandamus relief in connection with a

personal injury lawsuit he filed on January 5, 2023, against Aaron Thompkins,

Robert Behrns, Johnson Olusanya, The University of Texas Medical Branch, and the

Texas Department of Criminal Justice. Aiello asks this Court to order the trial court

to rule on Aiello’s pending motions. We deny mandamus relief.

1
Aiello identifies twelve motions he claims the trial court has ignored. Aiello

identified the motions by title and date of filing but he omitted copies of the motions

from his mandamus record. Most of the motions apparently concern discovery, while

others address obtaining rulings on pre-trial motions, ask for a trial setting, seek to

subpoena witnesses, and request Aiello’s presence at trial.

Presumably, this is a Level 2 civil case and the discovery period does not

commence until 30 days after the filing of the first answer or general appearance.

See Tex. R. Civ. P. 190.3(b)(1); 194.2(a). Aiello omitted from his mandamus petition

any indication that citations issued and were returned after having been served on

the defendants or that any of the defendants answered Aiello’s lawsuit. Aiello states

that to the best of his knowledge none of the defendants are represented by counsel.

Considering all the defendants appear to be government employees or units of state

government, it is possible the defendants have not been properly served or have not

yet entered appearances in the case. In the absence of returns of service showing

process was served on the defendants, the district court has no ministerial duty to

hear Aiello’s motions. See In re Sheedy, No. 01-21-00476-CV, 2021 WL 4268486,

at *2 (Tex. App.—Houston [1st Dist.] Sept. 21, 2021, orig. proceeding) (mem. op.);

In re Reger, No. 03-16-00120-CV, 2016 WL 1407698, at *1 (Tex. App.—Austin

Apr. 5, 2016, orig. proceeding) (mem. op.).

2
Aiello has not shown that he is entitled to mandamus relief. Accordingly, we

deny the petition for a writ of mandamus. See Tex. R. App. P. 52.8(a).

PETITION DENIED.

PER CURIAM

Submitted on October 23, 2024
Opinion Delivered October 24, 2024

Before Golemon, C.J., Johnson and Chambers, JJ.

3