                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-16-00414-CV


              IN RE WESTERN ROYALTY CORPORATION, RELATOR

                              ORIGINAL PROCEEDING

                                 November 10, 2016

                           MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Relator, Western Royalty Corporation, filed a petition asking the Court to issue a

writ of mandamus directing respondent, the Honorable William C. Sowder, judge of the

99th District Court of Lubbock County, to “set a final hearing on [Western Royalty’s]

motion to dismiss baseless cause of action under TRCP 13.” The prayer requests a writ

of mandamus compelling Judge Sowder to “set a trial” on the motion to dismiss.


      To obtain mandamus relief, Western Royalty must demonstrate Judge Sowder

clearly abused his discretion and Western Royalty has no adequate remedy by appeal.

See In re Prudential Insurance Company of America, 148 S.W.3d 124, 135-36 (Tex.

2004) (orig. proceeding) (stating the standard). Mandamus may issue to compel a trial
court to rule on a matter pending before the court for a reasonable time but no abuse of

discretion can be found unless the relator establishes the court had a legal duty to

perform a non-discretionary act, was asked to perform the act, and failed or refused to

do so. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding).


       According to the limited mandamus record, Western Royalty’s “motion to dismiss

baseless cause of action,” filed on September 29, 2016, sought dismissal of the March

10, 2014 petition filed against Western Royalty by real party in interest Robert

Westerburg. We addressed the trial court’s judgment in that case in an appeal last

year. See Westerburg v. Western Royalty Corp., No. 07-15-00082-CV, 2015 Tex. App.

LEXIS 12612 (Tex. App.—Amarillo Dec. 11, 2015, pet. denied) (mem. op.).


       The mandamus record further shows Judge Sowder heard Western Royalty’s

motion to dismiss on October 14, and denied it by order signed November 6. A hearing

of post-judgment matters is scheduled for December 1. According to Western Royalty

this is the “final hearing.”


       We find no merit to Western Royalty’s request that we direct Judge Sowder to

“set a final hearing on [Western Royalty’s] motion to dismiss baseless cause of action

under TRCP 13,” or, as its prayer states it, to “set a trial” on the motion to dismiss.


       According to Western Royalty’s petition, a hearing was held on its motion to

dismiss. The court has denied the motion. According to Western Royalty, a “final

hearing” on the motion is set for December 1. The mandamus record contains nothing

showing Western Royalty has requested anything more of Judge Sowder.                 Finding




                                              2
Western Royalty has not shown an abuse of discretion by Judge Sowder, we deny its

petition.1


                                                       Per Curiam




       1
         The petition contained procedural deficiencies. Rule of civil procedure 13 was
the only authority cited and without elaboration, see TEX. R. APP. P. 52.3(h) (argument in
petition requires appropriate citation to authorities); no certification was attached, see
TEX. R. APP. P. 52.3(j) (certification requirement); and the documents Western Royalty
attached were not certified or sworn, see TEX. R. APP. P. 52.3(k)(A) (appendix),
52.7(a)(1) (record). These omissions were not a basis for our disposition, however.

                                            3
