                                     NUMBER 13-10-00471-CV

                                        COURT OF APPEALS

                             THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI - EDINBURG


                    IN RE TEXAS DEPARTMENT OF INSURANCE


                             On Petition for Writ of Mandamus.


                                     MEMORANDUM OPINION

                  Before Justices Rodriguez, Benavides, and Vela
                        Per Curiam Memorandum Opinion1

        By petition for writ of mandamus, the Texas Department of Insurance contends

that the trial court erred in refusing to grant its plea to the jurisdiction and in granting a

continuance of the hearing on the plea to the jurisdiction. The Court requested and

received a response to the petition for writ of mandamus from the real party in interest,

Manuel J. Montemayor. We deny the petition for writ of mandamus.

                                                         I.

        Mandamus is an extraordinary remedy that issues only if the trial court clearly

abused its discretion and the relator has no adequate remedy by appeal. In re Sw. Bell

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           See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required
to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). It is the relator’s burden

to provide this Court with a sufficient record to establish the right to mandamus relief.

Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992); In re Pilgrim’s Pride Corp., 187

S.W.3d 197, 198-99 (Tex. App.–Texarkana 2006, orig. proceeding); see TEX. R. APP. P.

52.3.

                                                 II.

        A mandamus petitioner establishes that the trial court abused its discretion by

failing to rule on a matter if the petitioner shows that the trial court: (1) had a legal duty

to rule; (2) was asked to rule; and (3) failed or refused to do so. See In re Dimas, 88

S.W.3d 349, 351 (Tex. App.–San Antonio 2002, orig. proceeding); In re Chavez, 62

S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding); Barnes v. State, 832

S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig. proceeding); accord

O’Connor v. First Ct. of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding). A

trial court has a reasonable time to perform the ministerial duty of considering and ruling

on a matter properly filed and before the court. Chavez, 62 S.W.3d at 228; Barnes, 832

S.W.2d at 426. Whether the judge has acted within a “reasonable” period of time

depends on the circumstances of the case. Chavez, 62 S.W.3d at 228. A party who

complains about a trial court’s refusal to rule on a pending motion must show that the

matter was brought to the attention of the trial court and that the trial court failed or

refused to rule. In re Hearn, 137 S.W.3d 681, 685 (Tex. App.–San Antonio 2004, orig.

proceeding); Barnes, 832 S.W.2d at 426-27; see e.g., In re Daisy, 156 S.W.3d 922, 924

(Tex. App.–Dallas 2005, orig. proceeding) (granting mandamus relief when record

contained several letters from the trial court explaining its refusal to rule on relator’s

motion).
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                                                III.

       Generally, appellate courts have considered the erroneous grant of a stay or

continuance to be an incidental trial ruling for which there is an adequate remedy by

appeal. See, e.g., In re Smart, 103 S.W.3d 515, 521 (Tex. App.–San Antonio 2003,

orig. proceeding). Ordinarily, in these circumstances, mandamus relief is not available.

Id.   However, mandamus relief may be granted when an erroneous continuance

operates to deny a litigant of a peculiar right not available to litigants in general or

directly interferes with the jurisdiction of another court or administrative body. See, e.g.,

City of Galveston v. Gray, 93 S.W.3d 587, 590-93 (Tex. App.–Houston [14th Dist.] 2002,

orig. proceeding) (mandamus relief granted where trial court granted plaintiff’s motion

for continuance motion and refused to rule on city’s and county’s pleas to the jurisdiction

premised on governmental immunity); In re Bishop, 8 S.W.3d 412, 421 (Tex. App.–

Waco 1999, orig. proceeding) (mandamus relief granted where trial court erroneously

granted an extension of the dismissal deadline provided by section 263.401 of the

Family Code for parental-rights termination suits); Gulf Energy Pipeline Co. v. Garcia,

884 S.W.2d 821, 824 (Tex. App.–San Antonio 1994, orig. proceeding) (mandamus relief

granted where trial court granted continuance of eminent domain proceedings which

interfered with statutory duty of special commissioners to set and conduct such

proceedings).

                                                IV.

       In the instant case, Montemayor’s “Original Petition” was filed on October 23,

2009. Relator’s “Plea to the Jurisdiction and Original Answer” was filed on December

30, 2009, and its “Plea to the Jurisdiction” was filed on April 16, 2010. Montemayor

filed an “Initial Response & Opposition to Defendant’s Plea to the Jurisdiction and
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Plaintiff’s Motion for Continuance” on or about July 20, 2010.               In his motion for

continuance, Montemayor alleges that relator failed to respond to his requests for

discovery, and accordingly, asks for additional time for discovery. On June 7, 2010, the

trial court set the plea to the jurisdiction for hearing on July 29, 2010.

       According to relator’s petition for writ of mandamus, the hearing proceeded as

scheduled. The record before us does not include the reporter’s record of that hearing

or a written order granting, denying, or continuing the hearing. In its appendix and

record, relator has included the trial court’s docket entry noting that attorneys for both

sides appeared at the hearing on the plea to the jurisdiction, plaintiff’s motion for

continuance was granted, and the matter was reset for November 4, 2010. Based on

the documents provided to us, the case is not currently set for trial.

       As stated previously, the general rule is that mandamus relief is not available to

review the granting of a continuance motion. See Smart, 103 S.W.3d at 521. Relator’s

petition for writ of mandamus does not present any exceptional circumstances which

would lead us to conclude that mandamus should issue. Cf. City of Galveston, 93

S.W.3d at 592; Bishop, 8 S.W.3d at 421; Gulf Energy Pipeline, 884 S.W.2d at 824. In

this regard, it is clear that a trial court has broad discretion to schedule and define the

scope of discovery. See In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999)

(orig. proceeding). Further, a plea to the jurisdiction may require the court to consider

evidence pertaining to jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 227 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.

2000). When the consideration of a trial court’s subject matter jurisdiction requires the

examination of evidence, the trial court exercises its discretion in deciding whether the

jurisdictional determination should be made at a preliminary hearing or await a fuller
                                                  4
development of the case, mindful that this determination must be made as soon as

practicable. Bland, 34 S.W.3d at 554. This determination “must be left largely to the

trial court’s sound exercise of discretion.” Id. In the instant case, the record before the

Court fails to establish that the trial court has not set the hearing on the plea to the

jurisdiction “as soon as practicable,” see id., or has otherwise abused its discretion by

acting unreasonably. See Alford Chevrolet-Geo, 997 S.W.2d 173. Therefore, the trial

court did not err in granting a continuance of the hearing.

                                                V.

       Relator further contends that the trial court erred in refusing to grant the plea to

the jurisdiction. However, we do not reach the merits of relator’s plea to the jurisdiction

or direct the trial court regarding how to rule on the plea. In re Blakeney, 254 S.W.3d

659, 661 (Tex. App.–Texarkana 2008); O’Donniley v. Golden, 860 S.W.2d 267, 269

(Tex. App.–Tyler 1993, orig. proceeding) (“While it is a basic premise that an appellate

court lacks the power to compel a trial judge to do a particular act involving or requiring

discretion on his part, this Court is empowered to order a trial judge to exercise his

discretion in some manner.”).

                                               VI.

       The Court, having examined and fully considered the petition for writ of

mandamus and the response thereto, is of the opinion that relator has not shown itself

entitled to the relief sought. Accordingly, the petition for writ of mandamus is DENIED.

See TEX. R. APP. P. 52.8(a).

                                                               PER CURIAM

Delivered and filed the 14th
day of September, 2010.

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