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Rule 383. Original Proceedings Other Than Habeas Corpus (1981)


1. Commencement. A mandamus or other original proceeding in the Court of Civil Appeals other than a petition far writ of habeas corpus shall be commenced by delivering to the Clerk of the Court of Civil Appeals the following:

a. Motion for leave to file.

b. Petition. The petition shall include this information and be in this form:

(1) The party seeking relief shall be denominated relator, and the opposing party shall be denominated respondent.

(2) If any judge, court, tribunal or other respondent in the discharge of duties of a public character is named as respondent, the petition shall disclose the name of the real party in interest, if any, or the party whose interest would be directly affected by the proceeding. The petition shall state the addresses of each respondent and real party in interest.

(3) The petition shall state the grounds for jurisdiction by the Court of Civil Appeals.

(4) The petition shall set forth in a concise and positive manner all undisputed facts that are necessary to establish relator's right to the relief sought. It shall be accompanied by a certified or sworn copy of the order complained of and other relevant exhibits.

(5) The petition shall state the relief sought and the basis far the relief, as well as the compelling circumstances which establish the necessity for the writ to issue.

(6) The petition shall include or be accom­panied by a brief of authorities and argument in support of the petition.

(7) The petition shall be verified.

(8) The petition shall contain a certificate of service, or a certificate explaining the absence of service.

(9) Three copies of the motion, petition and brief shall be delivered to the Clerk.

c. The deposit for costs, as provided by Rule 388a.

2. Service. Relator shall promptly serve upon respondent and each real party in interest a copy of the motion, petition and brief.

3. Action on Motion. The court may request that respondent or the real party in interest submit a reply, and in that event, the Clerk will so notify all identified parties. When it appears that relator may be unduly prejudiced by delay, or the court concludes for any other reason that a reply should not be requested, it may act upon the motion without giving prior notice to the respondent. If the court is of the tentative opinion that relator is entitled to the relief sought, the motion for leave to file will be granted, the petition filed, and the cause placed upon the docket. Otherwise, the motion will be overruled.

4. Temporary Relief. If the facts stated in the petition show that relator will be prejudiced unless immediate temporary relief is granted, the court may grant temporary relief after granting the motion far leave to file, without notice to respondents, as the exigencies of the case require. The court may require a band far the protection of the adverse parties as a condition to the temporary relief. An order granting temporary relief shall be effective until the final decision of the case, unless vacated or modified.

5. Notification. The Clerk shall notify by mail all identified parties of the filing of the petition and, within seven days after mailing the notice of the filing, respondent and any real party in interest, separately or jointly, may file with the Clerk and Serve upon the relator an answer, a brief of authorities, apposing exhibits, and a verified statement of any undisputed facts material to the proceeding. The court in its discretion may shorten or extend the time. The reply shall comply with the requirements set forth herein for the petition. In the event the motion is granted, relator shall immediately make the additional deposit for casts required by Rule 388a.

6. Oral Argument. In the event the motion is granted, the Court of Civil Appeals will schedule the petition far oral argument and relator, respondent or any other real party in interest, separately or jointly, may file and serve an additional brief of authorities and a verified answer provided, however, such additional brief and answer shall be filed with the Clerk and served upon all other parties at least five days prior to the date scheduled far oral argument, unless another time is designated by the court.

Amended by order of June 10, 1980, eff. Jan. 1, 1981: The rule is completely rewritten.

Prior Amendments Future Amendments
Oct. 29, 1940, eff. Sept. 1, 1941 Repealed by order of April 10, 1986, eff. Sept. 1, 1986
Oct. 12, 1949, eff. March 1, 1950