




 






In The
Court of Appeals
For the
First District of Texas
____________

NO. 01-05-00375-CV
NO. 01-05-00449-CV
____________

IN RE ROBERT D. SHEPPARD, M.D. AND EMCARE, INC., Relators




Original Proceeding on Petitions for Writ of Mandamus 
or for Writ of Prohibition 




CONCURRING  OPINIONI agree with the majority decision to deny relators’ petitions, but would deny
the petition for a writ of mandamus because relators have not demonstrated a clear
right to relief.  Well-settled principles demand that a relator who seeks relief in an
original proceeding demonstrate a “clear right” to the action that the relator seeks to
compel or to foreclose.  See Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996);
Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).  To warrant the relief requested
by writ of mandamus here, relators must conclusively establish that the trial court had
an unequivocal and ministerial duty to surrender jurisdiction—either because it was
undisputed that Ochoa never expected to serve Cooper, see Youngstown Sheet & Tube
Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962), or because of lack of demonstrated
“intent” by Ochoa to serve Cooper.  See M.O. Dental Lab. v. Rape, 139 S.W.3d 671,
674 (Tex. 2004).  Because relators have not conclusively established either
contention, I would deny their petition for a writ of mandamus. 


 
Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Alcala. 

Chief Justice Radack, concurring.
