Contents - Mandamus I. MANDAMUS ACTIONS IN GENERAL...2. A. Nature of Mandamus...2. B. Purpose of Mandamus...2

Transcription

1 Mandamus - Table of Contents Contents - Mandamus I. MANDAMUS ACTIONS IN GENERAL...2 A. Nature of Mandamus...2 B. Purpose of Mandamus...2 II. JURISDICTION OF THE COUNTY COURT OVER MANDAMUS ACTIONS...2 A. Mandamus Necessary to Enforce Appellate Jurisdiction over Justice Court...2 B. Mandamus Against Other Officials...3 C. The County Court s Mandamus Jurisdiction...3 D. An Application for Mandamus not Involving Appellate Jurisdiction...3 III. PARTIES OF A MANDAMUS ACTION...3 A. Plaintiffs Governmental Parties...4 a. State government...4 b. County government...4 c. City government Private Citizens...4 B. Defendants Proper Defendants in a Mandamus Action Improper Defendants in a Mandamus Action...5 IV. SUBSTANTIVE LIMITATION ON GRANTING MANDAMUS...6 A. Laches...6 Mandamus - i

2 Mandamus - Table of Contents B. Clean Hands Doctrine...6 C. Another Adequate Remedy Must Not Be Available...7 D. Mandamus Remedy Must Be Effective...7 E. Uselessness...7 F. Mootness...8 G. Defendant Must Be Able to Comply With the Mandamus Order In General Defendant Vacating Office: Motion to Abate Action...8 H. The Defendant Must Have an Enforceable Duty...8 I. Requirement of a Present Duty Only Non-Discretionary Duties Can Be Compelled Refusing to Perform Ministerial Duties Refusing to Exercise Discretion Abusing Discretion...10 J. Defendant Must Have Defaulted in Performing Duty...11 V. PLEADINGS IN A MANDAMUS ACTION...11 A. Plaintiff s Petition Notice to the Defendant Officer Required Joinder of Parties...11 a. Plaintiffs...11 b. Defendants Sufficiency/Specificity of Petition Negation of All Possible Affirmative Defenses Verification Amendments...14 B. Defendant s Answer...14 Mandamus - ii

3 Mandamus - Table of Contents 1. Specific Denials Required Effect of Inadequate Denials Pleading Affirmative Defenses Verification...14 VI. THE MANDAMUS HEARING...15 A. The Right to Notice of Mandamus Hearing...15 B. The Right to a Hearing...15 C. The Right to a Jury Trial...15 D. Evidence...15 E. Awarding Costs...15 VII. ISSUING THE WRIT...16 A. Accuracy in Naming the Person/Entity to be Compelled...16 B. Accuracy in Describing the Action to Be Performed...16 C. Enforcing the Writ...16 VIII. APPELLATE REVIEW OF THE WRIT...16 Mandamus - iii

4 I. MANDAMUS ACTIONS IN GENERAL I. MANDAMUS ACTIONS IN GENERAL Compiled A. Nature of Mandamus A writ of mandamus is an order requiring an inferior court or a public official or body to perform a duty compelled by law. An action for mandamus is a separate civil action. {Tex. Govt Code Sec }. A writ of mandamus may not be granted upon the motion of a party in a pending case. {State v. Wintergreen, 707 S.W.2d 260, 261 (Tex. App. - Corpus Christi 1986, no pet.)}. B. Purpose of Mandamus The purpose of mandamus is to enforce performance of a duty clearly defined by law. The duty compelled must be a purely nondiscretionary, ministerial act. Writs of mandamus cannot be used to establish or enforce an uncertain or disputed claim. {Callahan v. Giles, 155 S.W.2d 793, 795 (Tex. 1941)}. Mandamus serves to prevent a failure of justice when there is no established legal remedy. Mandamus is not appropriate if some other remedy, such as an appeal, is available. In re State Bar, 113 S.W.3d 730 (Tex. 2003). When the performance sought to be compelled is not official or semi-official, but is the performance of private or contractual duties, mandamus is not proper. {Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)}; {State ex rel. Vance v. Routt, 571 S.W.2d 903, (Tex. Crim. App. 1978)} (criminal cases). II. JURISDICTION OF THE COUNTY COURT OVER MANDAMUS ACTIONS A. Mandamus Necessary to Enforce Appellate Jurisdiction over Justice Court Mandamus can issue to compel an inferior court to perform a certain and positive duty, made mandatory by law, only if the act is ministerial and involves no discretion. {Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)}. The county court has exclusive jurisdiction over a justice court s transfer of a case to county court. {Guerra v. Weatherly, 291 S.W.2d 493, 495 (Tex. Civ. App. - Waco 1956, no writ)}. A mandamus hearing is not an appropriate device to review the actions and errors of the justice court. {State v. Archer, 353 S.W.2d 841 (Tex. 1962)}. Mandamus - 2

5 III. PARTIES OF A MANDAMUS ACTION A. Mandamus Necessary to Enforce Appellate Jurisdiction over Justice Court Generally, an act that the justice of the peace has discretion to refuse to perform, or that requires judgment, is more than ministerial and thus cannot be compelled by a mandamus order, unless the refusal is a clear abuse of discretion (in other words, the refusal would be fraudulent, capricious, or arbitrary). {Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)}. A county court may issue a writ of mandamus to protect its jurisdiction by removing an impediment created by a lower court. {Lozano v. Acevado, 659 S.W.2d 919, (Tex. App. - San Antonio 1983, no pet.)}. Thus, the county court has the power to issue a mandamus to compel a justice court to: 1. perform duties as required by statute to transfer a case to county court; 2. enter a final judgment; 3. approve an appeal bond; and 4. prepare and transmit a transcript of the docket. B. Mandamus Against Other Officials A mandamus action must fall within the subject matter jurisdiction of the county court. In re State Bar, 113 S.W.3d 730 (Tex. 2003). C. The County Court s Mandamus Jurisdiction The county court has mandamus jurisdiction in actions involving amounts in controversy between $200 and $5,000. Tex. Govt Code, chapter 25. D. An Application for Mandamus not Involving Appellate Jurisdiction An application for mandamus not involving appellate jurisdiction over a justice court must allege the amount in controversy. Otherwise, the petition confers no jurisdiction on the county court. III. PARTIES OF A MANDAMUS ACTION A. Plaintiffs Although a person who files a mandamus action is often called a plaintiff, the technical term for the person filing a mandamus is Relator. The following are appropriate parties to bring a mandamus action: Mandamus - 3

6 III. PARTIES OF A MANDAMUS ACTION A. Plaintiffs 1. Governmental Parties a. State government The state can bring a mandamus suit to compel a corporation to perform a duty imposed upon it by law or to prevent an abuse of power by a public officer. {Uvalde Rock Asphalt Co. v. Loughridge, 425 S.W.2d 818 (Tex. 1968)}. A district attorney can bring a petition for writ of mandamus to compel a trial judge to rescind an erroneous decision requiring the district attorney to remove him and his staff from a criminal case. {State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex. Crim. App. 1990)}. A state agency can ask for mandamus relief to prevent a trial judge from permitting disclosure of statutorily privileged material before first determining in camera that the material was needed. {Texas Bd. of Pardons & Paroles v. Miller, 590 S.W.2d 142 (Tex. Crim. App. 1979)}. Where the state is authorized to bring a mandamus suit, the attorney general has the power to bring the action and the power to delegate that power to a county attorney in the name of the state. {Yett v. Cook, 281 S.W. 837 (Tex. 1926)}, overruled on other grounds as stated in {Public Utility Commission of Texas v. J.M. Huber Corp, 650 S.W.2d 951 (Tex. App. - Austin 1983, writ ref d n.r.e.)}. b. County government The county attorney can exercise any discretion delegated by the attorney general to bring a mandamus action in the name of the state. The county attorney also has the right to bring a mandamus action against a city to compel the city to enact ordinances as required by mandatory statutes. {International Water Co. v. City of El Paso, 112 S.W. 816 (Tex. Civ. App. 1908, writ ref d)}. c. City government A city can compel a corporation to perform a duty that is required by a franchise agreement between the city and the corporation. Unless authorized by statute, a public board or body has no power to seek mandamus. {International Water Co. v. City of El Paso, 112 S.W. 816 (Tex. Civ. App. 1908, writ ref d)}. 2. Private Citizens A suit for mandamus must be prosecuted by the real party in interest. That is, the plaintiff must show that he has a justiciable interest in the subject matter of the lawsuit, either in his own right or in a representative capacity. In other words, the Mandamus - 4

7 III. PARTIES OF A MANDAMUS ACTION A. Plaintiffs plaintiff must show some individual interest greater than that of the general public. For example, if a citizen seeks to enforce a law for the benefit of the public at large through a mandamus action, but the district attorney refuses to join, the citizen is not a proper plaintiff and cannot bring the mandamus action. {Wolf v. Petty, 414 S.W.2d 539 (Tex. Civ. App. - Fort Worth 1967, no writ)}. When the issue is one of public right (for example, when a statute gives any citizen clear standing to enforce a general public right), a citizen may bring a mandamus action without showing a special interest. {Wolf v. Petty, 414 S.W.2d 539 (Tex. Civ. App. - Fort Worth 1967, no writ)}. B. Defendants Although those against whom a mandamus action is filed are often referred to as defendants, the technical term for those parties is Respondent. 1. Proper Defendants in a Mandamus Action The following are frequently named as defendants in mandamus actions brought in county courts: a. justices of the peace; b. local government officials; c. members of public boards and commissions; d. sheriffs; and e. corporate officers. {Tex. Govt Code Sec (a)} and {Tex. Govt Code Sec (a)}. 2. Improper Defendants in a Mandamus Action The following are not proper defendants to a mandamus action because a county court has no jurisdiction over these entities and should thus dismiss a mandamus action filed against the following defendants: a. the State of Texas; (The state cannot be a defendant to a mandamus action without its consent. The mandamus action must be brought against a particular official. Taylor v. Hall, 9 S.W. 148 (Tex. 1888)) Mandamus - 5

8 IV. SUBSTANTIVE LIMITATION ON GRANTING MANDAMUS B. Defendants b. the Governor of Texas or any board of state officers where the Governor is a member; Tex. Const. art. V, Sec. 3 c. executive officers of the State of Texas; {Tex. Govt Code Sec } d. county court judges and clerks; {Tex. Govt Code Sec (a)}, {Tex. Govt Code Sec (a)} e. district court judges and clerks; and {Tex. Govt Code Sec (a)}, {Tex. Govt Code Sec (a)} f. appellate court justices {Tex. Govt Code Sec (a)}, {Tex. Govt Code Sec (a)} IV. SUBSTANTIVE LIMITATION ON GRANTING MANDAMUS A. Laches Laches is a defense that is similar to the defense that the statute of limitations has run. Under this defense, a plaintiff s mandamus action should be barred if the plaintiff has delayed so long that bringing the action now causes prejudice to the adverse party. The defense of laches is not valid when there is merely delay. Instead, any delay must have worked to the disadvantage of another. In re Hinterlong, 109 S.W.3d 611 (Tex. App. - Fort Worth 2003, no pet.). Laches must be proved by the party asserting it. It does not need to be pleaded by the defendant to be available as a defense. Laches cannot be asserted against governmental bodies to bar enforcement of statutes or ordinances. B. Clean Hands Doctrine The clean hands doctrine is a defense to a mandamus action. This defense means that a court should not grant mandamus relief to a party who, by some previous conduct, has acted in bad faith or has violated some other equitable principle. The defendant relying on the doctrine must assert and prove it. To invoke the clean hands defense, the defendant must show that he or she suffered injury from the plaintiff s alleged conduct. In re Gamble, 71 S.W.3d 313 (Tex. 2002). Mandamus - 6

9 IV. SUBSTANTIVE LIMITATION ON GRANTING MANDAMUS C. Another Adequate Remedy Must Not Be Available C. Another Adequate Remedy Must Not Be Available Mandamus should not be issued if the complainant has another plain, effective, and adequate remedy to obtain the relief sought. In other words, mandamus must be the complainant s last resort. Examples of other remedies that may exist include appeal, certiorari, ordinary suit, and statutory relief. The party seeking mandamus must prove that no other adequate remedy exists. {Street v. Second Court of Appeals, 715 S.W.2d 638, 639 (Tex. 1986)}. To be adequate, the other remedy must: 1. provide relief on the very subject matter of the particular right that the law affords the complainant, and 2. be at least as convenient and effective as mandamus. The fact that the complainant has no adequate legal remedy is not, in itself, an argument for granting a mandamus, if mandamus is barred by other restrictions. Similarly, the fact that an appeal will be time-consuming and costly will not justify the use of mandamus. Appeal is inadequate, and mandamus is justified, only when the complainant stands to lose substantial rights. There is an exception to this rule: If a statute gives the right to a mandamus in express and unqualified terms, then mandamus may be pursued regardless of whether another adequate remedy exists. D. Mandamus Remedy Must Be Effective Before a court can grant mandamus, it must find that the remedy of mandamus will be effective. In re Taylor, 113 S.W.3d 385 (Tex. App. - Houston [1st Dist.] 2003, no pet.). E. Uselessness Mandamus should not be issued if it would be useless or unavailing. Similarly, mandamus should not be issued if the complainant is left in no worse position without the order than if the order had been issued. {Dow Chemical Co. v. Garcia, 909 S.W.2d 503 (Tex. 1995)}. Mandamus should not be issued if the order would give the complainant no additional rights. For example, a court should not issue a mandamus to compel municipal officers to grant a permit required under a void ordinance if the complainant is free to proceed without a permit. Mandamus - 7

10 IV. SUBSTANTIVE LIMITATION ON GRANTING MANDAMUS E. Uselessness Mandamus should not be issued if it will not result in a substantial benefit to the complainant, even though a mandamus might be technically proper. F. Mootness Mandamus should not be issued if the issue sought to be resolved by the mandamus action becomes moot. Specifically, mandamus should not be issued to compel: 1. an act that has already been done; 2. an act that is done pending the mandamus hearing; 3. an act that the defendant-official has shown a willingness to perform without coercion; or 4. an act that the defendant-official has already conditionally agreed to perform upon the satisfaction of certain requirements by the complainant. {Skelton v. Yates, 119 S.W.2d 91 (Tex. 1938)}. G. Defendant Must Be Able to Comply With the Mandamus Order 1. In General Mandamus should not be issued to compel one to do something impossible for that person to do or beyond his her power. For example, a mandamus should not be issued to compel a judge to prepare a statement of facts where the judge is unable to do so. {State ex rel Bennet v. Clarendon Independent School Dist., 298 S.W.2d 111 (Tex. 1957)}. 2. Defendant Vacating Office: Motion to Abate Action When an official vacates office before the final resolution of the mandamus action, the court may either allow the complainant s suit to attach to the officials successor or abate the complainant s action. H. The Defendant Must Have an Enforceable Duty Before a court can grant mandamus, it must find that defendant has an enforceable duty. {Crowley v. Carter, 192 S.W.2d 787 (Tex. Civ. App. - Fort Worth 1946, no writ)}. 1. The duty of the defendant may be either express or implied. Mandamus - 8

11 IV. SUBSTANTIVE LIMITATION ON GRANTING MANDAMUS H. The Defendant Must Have an Enforceable Duty 2. Duties that are clearly and expressly defined by law serve as the basis for compelling the defendant s duty through mandamus. In addition, duties that are not expressly defined, but that reasonably relate to the express duties of the defendant, may also serve as a basis for compelling the defendants duty through mandamus. 3. Mandamus should not be issued if the duty sought to be compelled is neither expressly defined by law nor reasonably related to those express duties. I. Requirement of a Present Duty For a mandamus to issue, the defendant-officer must have some kind of present duty to perform the act sought to be performed. {Crowley v. Carter, 192 S.W.2d 787 (Tex. Civ. App. - Fort Worth 1946, no writ)}. The defendant-officer may not be compelled to: a. perform an act that is not her duty to perform; {State ex rel Bennet v. Clarendon Independent School Dist., 298 S.W.2d 111 (Tex. 1957)}. b. perform a duty that is not yet due; {State ex rel Bennet v. Clarendon Independent School Dist., 298 S.W.2d 111 (Tex. 1957)}. c. perform a contingent duty owing at irregular intervals in the future; {Telluride Power Co. of Tex. v. City of Teague, 240 S.W. 950 (Tex. Civ. App. - Dallas 1922, no writ)}. d. perform a duty in a particular manner (mandamus may compel an act, but not the means of accomplishing the act); {Denison & S. Ry. Co. v. City of Denison, 112 S.W. 780 (Tex. Civ. App. 1908, writ ref d)}. e. perform contractual duties, unless those duties are also expressly or impliedly required by law; {State v. San Antonio St. Ry. Co., 30 S.W. 266 (Tex. 1895)}. f. perform an act that is required under an unconstitutional statute. {Holman v. Pabst, 27 S.W.2d 340 (Tex. Civ. App. 1930, writ ref d)}. 1. Only Non-Discretionary Duties Can Be Compelled A court cannot issue mandamus to compel performance of discretionary duties. {Wolters v. Wright, 623 S.W.2d 301 (Tex. 1981)}. Mandamus - 9

12 IV. SUBSTANTIVE LIMITATION ON GRANTING MANDAMUS I. Requirement of a Present Duty 2. Refusing to Perform Ministerial Duties Purely non-discretionary, ministerial duties imposed by law may be compelled by a mandamus order. {Wolters v. Wright, 623 S.W.2d 301 (Tex. 1981)}. An act that the defendant-officer has discretion to perform or that calls for judgment by the defendant-officer is more than ministerial and usually cannot be the subject of a mandamus. A court cannot grant mandamus to control or review the judgment or discretion of the following officials: a. city council; b. city board of alderman; c. school board of trustees; d. school officials; and e. district and county attorneys. 3. Refusing to Exercise Discretion A court may grant mandamus when a defendant-officer refuses to exercise the discretion delegated to her. {Pickard v. Castillo, 550 S.W.2d 107 (Tex. App. - Corpus Christi 1977, no writ)}. A court cannot grant mandamus where refusal to act to exercise discretion amounts to constructive fraud. In that situation, a mandamus order may compel the defendant to exercise discretion, but may not instruct the defendant as to how to exercise that discretion. 4. Abusing Discretion The court may grant mandamus if the defendant-officer has been guilty of so gross an abuse of discretion that the officer s acts are fraudulent, capricious, or arbitrary. If there is any reasonable basis for the defendant-official s discretionary act, then a court should not interfere by issuing a mandamus. {Hawthorne v. La-Man Constructors, Inc., 672 S.W.2d 255 (Tex. App. - Beaumont 1984, no writ)}. Mandamus - 10

13 V. PLEADINGS IN A MANDAMUS ACTION J. Defendant Must Have Defaulted in Performing Duty J. Defendant Must Have Defaulted in Performing Duty A mandamus should not be issued to compel an official to perform an act that she has not refused to perform. A mandamus should not issue until it definitely appears that the defendant-official has defaulted in the performance of a clear legal duty. {O Connor v. First Court of Appeals, 837 S.W.2d 94 (Tex. 1992)}. For default to be established, it should appear that performance of the duty has been demanded and subsequently refused or that the defendant-official s conduct shows that a demand would have been futile. Mere lapse of time will not establish a refusal or default, unless the delay is unreasonable. V. PLEADINGS IN A MANDAMUS ACTION A. Plaintiff s Petition 1. Notice to the Defendant Officer Required The defendant named in the mandamus action must be served with notice according the Texas Rules of Civil Procedure. A defendant-official can waive service of citation either through express waiver or by appearing and answering to the merits of the mandamus petition. {Tex. R. Civ. P. 694}. 2. Joinder of Parties a. Plaintiffs Persons having a joint interest, including governments and citizens, may join the mandamus action as plaintiffs. Interested persons who could have been plaintiffs, but were not joined as plaintiffs, may be permitted by the court to intervene. {Hughes v. McDonald, 122 S.W.2d 366 (Tex. Civ. App. - Austin 1938)}, rev d on other grounds, 152 S.W.2d 327 (Tex. 1941). b. Defendants All persons charged with the performance sought to be compelled by the mandamus action should be joined as defendants. A party not joined as a defendant is not bound by any subsequent mandamus order. {Morton s Estate v. Chapman, 75 S.W.2d 876 (Tex. 1934)}. Only those persons who have the clear duty to perform the action sought need be joined as defendants. Those persons not charged with such a duty need not be joined. For example, the adverse party in underlying litigation Mandamus - 11

14 V. PLEADINGS IN A MANDAMUS ACTION A. Plaintiff s Petition need not be made a defendant in a subsequent mandamus action to compel a judge to perform a ministerial duty. {Bryant v. O Donnell, 359 S.W.2d 170 (Tex. Civ. App. - Dallas 1962, no writ)}. Boards as defendants: If the duty sought to be compelled rests with a board, then all members must be joined, both as officers and individuals. {Gaal v. Townsend, 14 S.W. 365 (Tex. 1890)}. Municipal corporations as defendants: If the duty sought to be compelled is owed by a municipal corporation, then the city is the proper defendant, and no officers need be joined. {Young v. City of Colorado, 174 S.W. 986 (Tex. Civ. App. - Fort Worth 1915, writ dism d)}. Municipal officers as defendants: If the duty sought to be compelled is owed by a particular municipal officer, then the officer is the proper defendant, and the city need not be joined. {City of Nacogdoches v. McBride, 27 S.W.2d 866 (Tex. Civ. App. - Beaumont 1930, no writ)}. The joinder of corporations and their officers as defendants in a mandamus action depends on the action sought to be compelled. {Salgo v. Hoffman, 521 S.W.2d 922 (Tex. Civ. App. - Dallas 1975, no writ)}. Third persons claiming an adverse interest in the subject matter of the suit must be joined as defendants, without regard to the validity of their claims. {Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304 (Tex. 1994)}. 3. Sufficiency/Specificity of Petition A mandamus petition must be more specific than normally required in a civil petition. {Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304 (Tex. 1994)}; {Wright v. Valderas, 575 S.W.2d 405 (Tex. Civ. App. - Fort Worth 1978, no writ)}; see also {Tex. R. App. P. 52}. The mandamus petition must state the grounds for jurisdiction. Therefore, the petition must state that the amount in controversy is within the jurisdictional amount. The petition must state all facts necessary to entitle the plaintiff to the relief sought. The mandamus petition should show that: a. plaintiff is entitled to the performance sought; b. defendant is under a duty to perform the act sought to be compelled; Mandamus - 12

15 V. PLEADINGS IN A MANDAMUS ACTION A. Plaintiff s Petition c. defendant has breached that duty (the plaintiff must show either that the defendant refused the plaintiff s demand to perform or that the defendant s conduct reveals the futility of demanding his performance); d. defendant has the power to perform the act sought; e. mandamus can effectively compel the act sought to be compelled (in other words, there is no impediment to performing the act); and f. there is no other adequate remedy. The necessary facts must be stated clearly by allegations that are direct and empirical, rather than argumentative or inferential. Mere conclusions or opinions are insufficient. A defendant-official who desires more particular information about the relief sought may file a special exception. However, the defendant who fails to specially except will not waive any later objection regarding the adequacy of the petition. State statutes conferring the right sought to be enforced need not be specifically pleaded. A petition brought for the purpose of reviewing an officials discretion must allege facts showing an abuse of discretion. 4. Negation of All Possible Affirmative Defenses The petition must anticipate and negate every possible defense, including any legal excuse for not performing the act sought to be compelled by the mandamus. {McIntosh v. Watts, 5 S.W.2d 1003 (Tex. Civ. App. - Waco 1928, no writ)}. If the plaintiff s pleading has failed to negate a particular defense, the defendant may raise it at the hearing even if he has failed to raise it in his response. {Anderson v. Polk, 297 S.W. 219 (Tex. 1927)}. 5. Verification A petition for mandamus must be verified. The verification should be based on the petitioner s knowledge about the truth of the facts alleged. The defendant may, however, must raise the argument about the plaintiff s failure to verify the petitions or he will waive it. {Wright v. Valderas, 575 S.W.2d 405 (Tex. App. - Fort Worth 1978, no writ)}. Mandamus - 13

16 V. PLEADINGS IN A MANDAMUS ACTION A. Plaintiff s Petition 6. Amendments The plaintiff may amend pleadings in the same manner as in any other civil action. {Chrestman v. Tompkins, 5 S.W.2d 257 (Tex. Civ. App. - Dallas 1928, writ ref d)}. B. Defendant s Answer 1. Specific Denials Required A general denial by the defendant is insufficient. The defendant must answer the plaintiff s allegations with the same specificity as the plaintiff s petition. A sufficiently pleaded answer will force the plaintiff to prove the allegations. {Sansom v. Mercer, 5 S.W. 62 (Tex. 1887)}. The defendant need not plead any negative facts that the petition has failed to allege. The defendant s response need only rebut the plaintiff s allegations. An uncontroverted allegation is deemed admitted by the defendant. {Whitehead v. Julian, 476 S.W.2d 844 (Tex. 1972)}. A sufficiently pleaded answer will force the plaintiff to prove the allegations. 2. Effect of Inadequate Denials A general denial is considered a nullity, and the plaintiff s allegations are deemed to be true. If the defendants responsive pleading is a nullity, and the plaintiff s allegations specifically establish the elements for granting the mandamus, then the court may render judgment awarding the mandamus without hearing the proof. {Sansom v. Mercer, 5 S.W. 62 (Tex. 1887)}. 3. Pleading Affirmative Defenses If the plaintiff fails to anticipate and answer a defendant s affirmative defense, then the defendant need not plead the affirmative defense to raise the issue at a subsequent hearing. {Whitehead v. Julian, 476 S.W.2d 844 (Tex. 1972)}. If the plaintiff does anticipate and answer defendant s possible affirmative defense with sufficient specificity, then the defendant must rebut the allegations or risk waiving the defenses. 4. Verification As a general rule, the defendant s responsive pleading must be verified. {Wright v. Valderas, 575 S.W.2d 405 (Tex. Civ. App. - Fort Worth 1978, no pet.)}. Mandamus - 14

17 VI. THE MANDAMUS HEARING B. Defendant s Answer VI. THE MANDAMUS HEARING A. The Right to Notice of Mandamus Hearing The court may not grant a mandamus through an ex parte hearing. A mandamus issued without notice is a denial of due process and is void. Written notice of a mandamus hearing will usually satisfy the notice requirement. The written notice need not be in the form of a citation. {Tex. R. Civ. P. 694} The notification of and appearance by a party does not bind co-parties who received no notice and who did not appear. B. The Right to a Hearing When material facts are contested, the parties to a mandamus action are entitled to a trial in open court. However, a defendant who agrees to judgment on the pleadings or fails to sufficiently respond to the plaintiff s petition may not later complain that there should have been a hearing in open court. {Employees Retirement System v. McDonald, 551 S.W.2d 534 (Tex. App. - Austin 1991, writ ref d)}. C. The Right to a Jury Trial The parties to a mandamus action are usually entitled to a jury trial on contested issues of fact. The court can refuse a jury trial if no issues of fact are disputed. {Hooks v. Fourth Court of Appeals, 808 S.W.2d 56 (Tex. 1991)}. D. Evidence To justify the issuance of a writ of mandamus, the plaintiff must present a sufficient evidentiary foundation establishing the right to relief. The plaintiff has the burden of proving all the facts necessary for the mandamus to issue. The plaintiff also has the burden of refuting all facts submitted by the defendant. {Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994)}. The plaintiff need not prove any allegations that are either expressly admitted or deemed admitted by the pleadings. E. Awarding Costs Ordinarily, the costs of mandamus suit will be awarded to the prevailing party. However, the court, for good cause to be stated on the record, may apportion costs otherwise. Officers and board members may be held personally liable for costs, even if they resign prior to the proceedings. {McMeans v. Finley, 32 S.W. 524 (Tex. 1895)}. Mandamus - 15

18 VII. ISSUING THE WRIT E. Awarding Costs VII. ISSUING THE WRIT A. Accuracy in Naming the Person/Entity to be Compelled The issued writ must be directed specifically to the person or persons who are named in the writ. If the judge finds that a city is subject to a writ of mandamus, the writ may be directed to it in its corporate name. A writ against a board must be directed to all board members. {Culberson County v. Groves Lumber Co., 191 S.W. 165 (Tex. Civ. App. - El Paso 1917, no writ)}. B. Accuracy in Describing the Action to Be Performed The judgment granting the writ of mandamus must specifically state the action to be performed. The writ should leave no discretion to the defendant-officer to disregard the writ in part or to decide how far the writ must be obeyed. However, the writ need not particularize every ministerial duty fixed by law. {Texas Mexican Ry. Co. v. Jarvis, 15 S.W (Tex. 1891)}. C. Enforcing the Writ A defendant who fails or refuses to obey a judgment issuing a mandamus order may be punished for contempt. {Wolters v. Wright, 623 S.W.2d 301 (Tex. 1981)}. VIII. APPELLATE REVIEW OF THE WRIT The issuance of a mandamus rests largely in the court s discretion. {Crowley v. Carter, 192 S.W.2d 787 (Tex. Civ. App. - Fort Worth 1946, no writ)}. Unless it appears that the court has abused its discretion in issuing the mandamus, the order will not be disturbed by a higher court AM L_MANDAMUS_2017 Mandamus - 16