
In The


Court of Appeals


Ninth District of Texas at Beaumont


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NO. 09-08-409 CV

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IN RE KENNETH HOLMES AND HELEN HOLMES




Original Proceeding



MEMORANDUM OPINION
 By petition for writ of mandamus, the plaintiffs, who in 2004 non-suited a case filed
in the 58th District Court and re-filed the case in the 136th District Court, seek to compel the
trial court judge to transfer the case to the 58th District Court.  Kenneth Holmes and Helen
Holmes filed the motion to transfer in 2008.  The trial court ruled that Kenneth Holmes and
Helen Holmes waived through inaction their rights under a local rule to compel a transfer.
The relators assert that the rule is mandatory and therefore cannot be waived.  We hold the
trial court did not abuse its discretion.  Accordingly, we deny mandamus relief.


	A local rule provides that a civil case that has been non-suited and re-filed must be
reassigned to the same court.  See Jefferson (Tex.) Civ. Dist. Loc. R. 6(D).  Although the
case had been on the docket of the 136th District Court for four years, the Holmeses filed a
motion to transfer less than two months before the date the case is set for trial.  "Mandamus
relief, which is largely controlled by equitable principles, may be denied a party for lack of
diligence."  In re Users Sys. Servs., Inc., 22 S.W.3d 331, 337 (Tex. 1999); see also Vaughan
v. Walther, 875 S.W.2d 690, 691 (Tex. 1994).  After reviewing the mandamus record, we
conclude that the trial court did not abuse its discretion by denying the motion to transfer.  
	The relators' petition for writ of mandamus and motion for temporary relief are
denied.
	PETITION DENIED.
									PER CURIAM
Submitted on September 30, 2008
Opinion Delivered October 2, 2008
Before McKeithen, C.J., Gaultney and Horton, JJ. 
