in Re: Charles W. Bishop II ( 2006 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed August 24, 2006

Petition for Writ of Mandamus Denied and Memorandum Opinion filed August 24, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00636-CV

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IN RE CHARLES W. BISHOP, II,

 Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M  O P I N I O N

On July 3, 2006, relator Charles W. Bishop, II filed a petition for writ of mandamus in this court seeking an order compelling the Honorable Kent Sullivan, formerly presiding judge of the 80th District Court, Harris County, Texas, to rule on several motions.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see  also  Tex. R. App. P. 52.1.  Relator also seeks a writ ordering Charles Bacarisse to provide relator with copies of the trial court=s docket and the clerk=s docket.  We deny relator=s petition for writ of mandamus.  

When a motion is properly filed and pending before a trial court, the act of considering and resolving it is ministerial, not discretionary.  Ex parte Bates, 65 S.W.3d 133, 134B35 (Tex. App.CAmarillo 2001, orig. proceeding).  However, the trial court has a reasonable time to perform this ministerial duty, and there is no bright‑line rule demarcating the boundaries of a reasonable time period.  Id. at 135.  The determination of whether a reasonable time has elapsed is dependent upon the circumstances of each case and a number of factors are involved in the determination, such as the trial court=s actual knowledge of the motion, its overt refusal to act on the motion, the state of the court=s docket, and the court=s inherent power to control its docket.  Id.; Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.CHouston [1st Dist.] 1992, orig. proceeding).  The relator has the burden of providing a record demonstrating that the motion has awaited disposition for an unreasonable time.  In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.CSan Antonio 2004, orig. proceeding).

Here, the motions attached to relator=s petition appear to be originals, and there is no file stamp or other indication the motions were in fact filed and are pending before the trial court. See Ex parte Bates, 65 S.W.3d at 135 (finding relator failed to show motions were properly filed because the motions lacked a file stamp, and relator did not provide a return receipt or any proof that motions were mailed to court clerk at proper address with proper postage); In re Chavez, 62 S.W.3d 225, 228B29 (Tex. App.CAmarillo 2001, orig. proceeding) (noting that stating something was properly filed is not sufficient to show trial court had notice of the filing and the need to act on it).  Relator provided a copy of a letter to Charles Bacarisse, which stated relator was enclosing a motion requesting a ruling, but filing a motion with the district clerk does not impute knowledge of a pending motion to the trial court.  In re Hearn, 137 S.W.3d 681, 685 (Tex. App.CSan Antonio 2004, orig. proceeding).  In short, the record fails to show that (1) the motions were filed in the trial court, (2) the trial court had actual knowledge of the motions, (3) it refused to act on the motions, or (4) the state of the court=s docket.^[1]

Further, we do not have jurisdiction to compel the district clerk to act unless it is necessary to preserve our jurisdiction.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004).  Because it does not appear that the writ is necessary to enforce our jurisdiction, as to relator=s request concerning Charles Bacarisse, we do not have the authority to provide the requested relief. 

Relator has failed to establish he is entitled to the requested mandamus relief, and accordingly, we deny relator=s petition for writ of mandamus.    

PER CURIAM

Petition Denied and Memorandum Opinion filed August 24, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

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^[1]Judge Sullivan resigned a short time ago, and this fact may also contribute to a delay in ruling on relator=s motionsBif they have been filed.