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What Is the Deadline for Filing a Mandamus Petition?

By D. Todd Smith on November 4, 2020
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I get this question periodically. The short answer is that the Texas Rules of Appellate Procedure don’t impose a deadline. But that doesn’t mean a relator (a party wishing to challenge a trial court’s order by filing a petition for writ of mandamus) can delay pursuing mandamus relief indefinitely.

Rooted in Equity

Mandamus is an extraordinary remedy, not a right, and its issuance is largely controlled by equitable principles. A relator may only obtain mandamus relief if it can show that the trial court committed a clear abuse of discretion for which the relator lacks an adequate remedy by appeal. 

Equity doesn’t favor those who sleep on their rights. The procedural rules might not impose a time limit for bringing a mandamus petition, but promptness is essential to success. An unjustified delay may preclude mandamus relief.

Whether a perceived delay is “justified” will depend on the facts. Practically speaking, a relator who files a mandamus petition within a month or two after the order it complains about likely won’t have a time problem. But a relator who waits longer than that very well may.

To win based solely on a purported delay, the real party in interest (the party opposing mandamus relief) will need to show (1) that the relator unreasonably delayed asserting its rights, and (2) that, acting in good faith, the real party in interest detrimentally changed its position based on the relator’s delay.

Again, this inquiry is very fact-specific. An unexplained and prejudicial delay in one circumstance may be excusable in another. 

Avoid Procrastination

Meeting the mandamus standard is tough. When done right, mandamuses are often harder to handle than ordinary appeals. That difficulty is amplified when the lawyer charged with preparing the petition lacks experience in or comfort with the process.

Taking the time to put together a thoughtful mandamus petition is important, but procrastination is not your friend here. Relators should avoid creating any timing issue and give themselves the best chance to win by pursuing mandamus relief promptly after the trial court signs the offending order.

Photo of D. Todd Smith D. Todd Smith

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd…

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

Todd earned degrees from Texas Christian University (B.S. 1989), Texas Tech University (M.P.A. 1992), and St. Mary’s University School of Law (J.D. 1995). While in law school, he was editor in chief of the St. Mary’s Law Journal and interned with Fifth Circuit Judge Emilio M. Garza (ret.).

Before joining Butler Snow, Todd served as a briefing attorney to Texas Supreme Court Justice Raul A. Gonzalez (ret.) (1995-1997), practiced with Fulbright & Jaworski L.L.P. (now Norton Rose Fulbright US LLP) (1997-2006), and ran his own civil appellate boutique (2006-2021). He is certified as a specialist in Civil Appellate Law by the Texas Board of Legal Specialization and regularly appears on Thomson Reuters’ Texas Super Lawyers list.

Todd frequently writes and speaks on appellate-related topics. In addition to publishing Texas Appellate Strategy, he is the creator, producer, and co-host of the Texas Appellate Law Podcast, a weekly show that demystifies appellate law and pulls back the curtain on the appellate system through conversations with judges, court staff, and practitioners.

Todd sits on the State Bar Board of Directors, is immediate past chair of the Austin Bar Foundation, and is a past-president of the Austin Bar Association. As Austin Bar president (2019-2020), Todd spearheaded creation of the Lawyer Well-Being Committee, which aims to educate, support and connect the Austin legal community to achieve more balanced, mindful, and joyful lives and practices. He also serves on the Judicial Committee on Information Technology, is a trustee of the Texas Supreme Court Historical Society, and is a member of the Robert W. Calvert American Inn of Court.

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  • Posted in:
    Appellate
  • Blog:
    Texas Appellate Strategy
  • Organization:
    Butler Snow LLP

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