                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00044-CV




             IN RE STATE FARM LLOYDS




             Original Mandamus Proceeding




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                            MEMORANDUM OPINION
           State Farm Lloyds (State Farm) has filed a petition for writ of mandamus alleging that it

filed a Motion to Modify Order (Motion to Modify), seeking the modification of an Order Granting

Interpleader (the Order) entered by the Honorable Craig L. Henry, judge of the County Court at

Law of Bowie County (the Respondent). State Farm asks this Court to direct the Respondent to

modify its Order as requested in its Motion to Modify, or, in the alternative, to enter an order

granting it the relief requested in its Original Petition for Interpleader. We deny State Farm’s

petition because State Farm has not shown that it is entitled to mandamus relief.

           State Farm filed an Original Petition for Interpleader and Declaratory Judgment against

Cynthia Nixon, et. al., seeking to interplead the policy limits of the structure coverage under its

insurance policy insuring the structure and contents of a house in Texarkana and a declaratory

judgment as to the compliance of the defendants with the policy conditions for the payment of

contents coverage, and of the value of that coverage.

           On March 29, 2019, the Respondent entered the Order granting the interpleader, but in

addition to requiring State Farm to deposit into the registry of the court the policy limits of the

structure coverage, the Order required it also to deposit the policy limits of the contents coverage.

In its petition, State Farm states that it filed its Motion to Modify1 asking the trial court to modify

the Order by eliminating the portion ordering it to deposit the policy limits for the contents

coverage and that over forty-five days have passed since the Order was signed.


1
    State Farm does not indicate when the Motion to Modify was filed.

                                                           2
        Mandamus relief will be granted only when the record establishes (1) a clear abuse of

discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate

remedy at law. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding); see

In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding).

Consideration of a motion that is properly filed and before the court is a ministerial act. State

ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987). However, the relator must

provide this Court with a record sufficient to establish the right to mandamus relief. Walker, 827

S.W.2d at 837; 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.

        State Farm has not provided this Court with a certified or sworn copy of its filed Motion to

Modify, as required by the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 52.3(k)(1)(A).

State Farm’s failure to comply with this rule is fatal to its request, because, without certified or

sworn copies of the motion, we cannot determine that the motion has actually been filed. 2 See In

re Shugart, 528 S.W.3d 794, 796 (Tex. App.—Texarkana 2017, orig. proceeding) In addition,

State Farm has not provided any evidence that the motion was brought to the trial court’s attention

and that a ruling was requested. The relator must show that the trial court received, was aware of,

and was asked to rule on the motion. In re Grulkey, No. 14-10-00450-CV, 2010 WL 2171408, at

*1 (Tex. App.—Houston [14th Dist.] May 28, 2010, orig. proceeding) (mem. op.) (per curiam)

(citing In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding)); see


2
 Although State Farm has attached a copy of a Motion to Modify, and has sworn that it is a true copy, the document
contains no file mark or any other indication that the motion was filed with the trial court.

                                                        3
also In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding)

(“Showing that a motion was filed with the court clerk does not constitute proof that the motion

was brought to the trial court’s attention or presented to the trial court with a request for a ruling.”).

        State Farm has not shown that it is entitled to the requested relief. We deny the petition

for writ of mandamus.



                                                Josh R. Morriss, III
                                                Chief Justice


Date Submitted:         June 11, 2019
Date Decided:           June 12, 2019




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