In re Charles Deus, 03-26-00057-CV, January 29, 2026.
On appeal from Travis County, Texas
Synopsis
The Texas Court of Appeals denied a petition for writ of mandamus seeking to compel a trial court to hold a hearing on a pending motion. The court held that the relator failed to provide a record demonstrating that a hearing had been expressly requested from the trial court or the court administrator, a fatal procedural omission in a mandamus proceeding.
Relevance to Family Law
In the high-stakes arena of family law litigation—particularly in suits affecting the parent-child relationship or temporary orders in divorces—obtaining a timely hearing is often a matter of urgency. This case underscores a critical procedural hurdle for practitioners: the mere filing of a motion, such as a Motion to Reinstate Access or a Motion for Enforcement, does not inherently obligate a trial court to act until a hearing is formally and expressly requested. Family law litigators must meticulously document their communications with court coordinators and administrators; without a clear paper trail showing that a hearing was sought and the trial court subsequently failed to act, any attempt to seek mandamus relief for “trial court inaction” will be summarily denied.
Case Summary
Fact Summary
Charles Deus filed a petition for writ of mandamus in the Third Court of Appeals, requesting that the appellate court direct the trial court to conduct a hearing on his “Motion to Re-Instate Access.” While the underlying facts of the motion itself were not the focus of the appellate court’s brief memorandum opinion, the procedural facts were dispositive. Deus submitted his petition without including a record of correspondence or formal requests directed to the trial court or the appropriate court administrator. There was no evidence provided to the appellate court that Deus had taken the affirmative step of asking for a specific setting or notifying the court that the motion was ripe for a hearing.
Issues Decided
The central issue was whether a relator can establish entitlement to mandamus relief to compel a hearing when the appellate record contains no evidence that the relator expressly requested a hearing from the trial court or its administrator.
Rules Applied
The court applied Texas Rule of Appellate Procedure 52.8, which governs the denial of mandamus relief. Furthermore, the court relied on the established principle that a relator seeking mandamus to compel a trial court to set a hearing must provide a record sufficient to support the relief requested. This includes demonstrating that the trial court was asked to perform the act and failed or refused to do so. The court cited In re Golz and In re Tarkington as controlling authorities for the proposition that a documented request for a hearing is a necessary prerequisite to mandamus relief in this context.
Application
The court’s application of the law was straightforward and focused entirely on the adequacy of the relator’s record. In a mandamus proceeding, the burden is squarely on the relator to provide a record that establishes a clear abuse of discretion or the violation of a ministerial duty. Here, the relator’s failure to include any correspondence with the court administrator or the trial court created a vacuum of evidence. The court reasoned that a trial court cannot be said to have abused its discretion by failing to hold a hearing if the record does not reflect that the court was ever asked to hold one. By failing to show that he had reached out to the court administrator to secure a date, Deus failed to meet the evidentiary threshold required by the Texas Rules of Appellate Procedure.
Holding
The Court of Appeals denied the petition for writ of mandamus. The court held that without a record of express correspondence requesting a hearing, the relator could not show he was entitled to the extraordinary relief of mandamus.
The court further noted that the responsibility for bringing a matter to the trial court’s attention and requesting a setting lies with the party seeking relief, and the appellate court will not intervene where the record is silent as to those efforts.
Practical Application
For the family law litigator, this case serves as a warning against relying on the “black hole” of a pending motion. If a trial court is slow to act on a motion for access, custody, or property restraint, you must create a “mandamus-ready” record. This means more than just filing the motion; it requires formal, written requests for a hearing sent to the court coordinator, often followed by a “Request for Setting” or “Notice of Hearing” filed with the clerk. If the coordinator ignores your emails or the court refuses to provide a date, those specific communications—stamped and dated—become the exhibits for your mandamus petition.
Checklists
Documenting the Request for a Hearing
- Prepare a formal written request for a hearing addressed to the Court Coordinator or Court Administrator.
- Ensure the request specifically identifies the motion to be heard and provides a time estimate.
- Keep copies of all sent emails and delivery receipts if correspondence is electronic.
- If the request is made via a telephone call, follow up immediately with a “per our conversation” email to confirm the request was made and the court’s response.
Preparing the Mandamus Record
- Include a file-stamped copy of the underlying motion (e.g., Motion to Re-Instate Access).
- Include all written correspondence with the trial court staff regarding hearing availability.
- Provide an affidavit from the attorney or legal assistant detailing the efforts made to secure a hearing date if the record of correspondence is incomplete.
- Verify that the record complies with Tex. R. App. P. 52.3 and 52.7, ensuring all necessary documents are authenticated.
Citation
In re Charles Deus, No. 03-26-00057-CV (Tex. App.—Austin Jan. 29, 2026, orig. proceeding).
Full Opinion
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