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).
2

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 
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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.