in Re Arcade Joseph Comeaux, Jr. ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00243-CV
IN RE ARCADE JOSEPH COMEAUX, JR.
Original Proceeding
MEMORANDUM OPINION
In 2002, Relator Arcade Joseph Comeaux, Jr., a state-prison inmate, filed a civil
suit in the Twelfth District Court of Walker County against the Texas Department of
Criminal Justice, Institutional Division (and possibly against several individual TDJC
officers or employees). Comeaux’s suit appears to be centered on disciplinary
punishment that he received for allegedly damaging a law book from the prison law
library.
The trial court initially dismissed Comeaux’s suit, but on appeal the Fourteenth
Court of Appeals (at that time, Walker County was in the Fourteenth Court’s district)
found that the dismissal was improper and reversed and remanded the case for further
proceedings. See Comeaux v. Texas Dep’t. Crim. Justice, Inst. Div., No. 14-02-01283-CV,
2005 WL 2978891 (Tex. App.—Houston [14th Dist.] Nov. 8, 2005, no pet.) (mem. op.).
In 2007, Comeaux filed an original proceeding with us complaining that the trial
court (at that time, Respondent William L. McAdams) would not rule on various
motions filed by Comeaux. See In re Comeaux, No. 10-07-00235-CV, 2007 WL 4260638
(Tex. App.—Waco Dec. 5, 2007, orig. proceeding) (mem. op.). We denied relief, stating
that Comeaux had not provided a record showing that he had brought the various
motions to Respondent’s attention. We did note, however, that we were “confident that
Respondent will proceed to dispose of Comeaux’s motions and lawsuit in a timely
fashion.” Id. at 2007 WL 4260638, at *2. We also noted:
We acknowledge the burden of pro se inmate litigation, but as long as a
suit satisfies Chapter 14 of the Civil Practice and Remedies Code, our
judicial system must function for such litigation as it does with any other.
In addition to providing litigants with their “day in court,” such
functioning will render unnecessary original proceedings such as this one.
Id. at 2007 WL 4260638, at *2, n.1 (emphasis added).
In early 2009, Comeaux filed another original proceeding, this time making
similar complaints against a visiting judge (but not against the newly elected trial judge
of the Twelfth District Court, the Honorable Donald L. Kraemer). The Clerk of the
Court sent a letter to Comeaux advising him of several deficiencies in his petition,
including his omission of Judge Kraemer as the Respondent. Thereafter, the Court
summarily denied Comeaux’s mandamus petition on May 13, 2009. See In re Comeaux,
No. 10-09-00052-CV (Tex. App.—Waco May 13, 2009, orig. proceeding) (mem. op.).
Comeaux has now filed his third original proceeding and makes the same
In re Arcade Joseph Comeaux, Jr. Page 2
complaints: the trial court will not rule on his motions. His petition again had several
deficiencies, and he has filed an amended petition in an attempt to cure these
deficiencies.1
Comeaux complains in part that we should order the trial court to consider and
grant several of Comeaux’s pending motions. While we have jurisdiction to direct a
trial court to exercise its discretion, we may not tell the trial court what its decision
should be. See In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.
proceeding); In re Shredder Co., 225 S.W.3d 676, 680 (Tex. App.—El Paso 2006, orig.
proceeding); see also In re Birdwell, 224 S.W.3d 864, 865 (Tex. App.—Waco 2007, orig.
proceeding) (“Although we may compel a court to consider a motion, we do not require
that the judge rule in a certain way.”). Accordingly, we cannot grant Comeaux
mandamus relief in this respect.
Comeaux also complains that the trial court will not consider and rule on his
various motions, which were filed between 2002 and 2008 and have been pending since
they were filed.
Mandamus may issue to compel a trial court to rule on a motion
which has been pending before the court for a reasonable period of time.
See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig.
proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex. App.—Waco 2003,
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); see also In re Shredder Co., 225
S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). To obtain
mandamus relief for such refusal, a relator must establish: (1) the motion
was properly filed and has been pending for a reasonable time; (2) the
1Comeaux replies that he lacks access to the Rules of Appellate Procedure. Because of our disposition
and to expedite it, we will implement Rule 2 and suspend the applicable rules in this proceeding only.
TEX. R. APP. P. 2.
In re Arcade Joseph Comeaux, Jr. Page 3
relator requested a ruling on the motion; and (3) the trial court refused to
rule. See Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at 252; Chavez, 62
S.W.3d at 228; Barnes, 832 S.W.2d at 426; see also Shredder Co., 225 S.W.3d at
679. The mere filing of a motion with a trial court clerk does not equate to
a request that the trial court rule on the motion. See Hearn, 137 S.W.3d at
685; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. Shredder Co.,
225 S.W.3d at 680 (“Relator has made repeated requests for a ruling on its
motion.”).
In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding).
A trial judge has a reasonable time to perform the ministerial duty of considering
and ruling on a motion properly filed and before the judge. In re Chavez, 62 S.W.3d 225,
228 (Tex. App.—Amarillo 2001, orig. proceeding). But that duty generally does not
arise until the movant has brought the motion to the trial judge’s attention, and
mandamus will not lie unless the movant makes such a showing and the trial judge
then fails or refuses to rule within a reasonable time. See id. The mere filing of a
pleading or letter with the clerk does not impute knowledge to the trial court. See In re
Flores, No. 04-03-00449-CV, 2003 WL 21480964 (Tex. App.—San Antonio June 25, 2003,
orig. proceeding).
It is the relator’s burden to provide us with a sufficient record to entitle his right
to mandamus relief. Blakeney, 254 S.W.3d at 661. Comeaux has again not provided us
with a sufficient record. He states that he has written letters and had friends call to
move the court to act, but this statement is insufficient to show that he has brought the
matters to the attention of the trial judge.
Comeaux’s failure to establish his right to mandamus relief does not excuse the
age of the underlying case and the fact that it apparently is no closer to disposition than
In re Arcade Joseph Comeaux, Jr. Page 4
it was at the time of our December 5, 2007 opinion in Comeaux’s first original
proceeding. We thus must repeat what we wrote then, with the expectation that this
time our confidence will be affirmed: “we are confident that Respondent will proceed
to dispose of Comeaux’s motions and lawsuit in a timely fashion.” Comeaux, 2007 WL
4260638, at *2.
Because Comeaux has not shown that he is entitled to relief, we deny the
amended petition for writ of mandamus.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurs in the court’s judgment with a note)*
Petition denied
Opinion delivered and filed September 22, 2010
[OT06]
*(Chief Justice Gray joins no part of the Court’s opinion. A separate opinion will
not issue. He notes, however, that there are some motions on which a trial court may
never have a duty to rule. See In re Davis, 10-10-0242-CV, August 25, 2010 (Chief Justice
Gray Concurring); In re Birdwell, 224 S.W.3d 864 (Tex. App.—Waco 2007) (orig. proc.)
(Chief Justice Gray Concurring). Unless the refusal to rule on a motion impedes the
development and ultimate disposition of a proceeding a trial court need not rule on the
motion. Pro se inmates are notorious for filing motions that simply do not need to be
ruled upon to properly dispose of a case. We have no way of knowing if the motions
Comeaux complains that the trial court has not ruled upon are such motions because he
has not provided us with a record of those motions. I also note that at least part of the
delay may have been caused by Comeaux’s escape. Accordingly, for these reasons,
Chief Justice Gray joins the court’s judgment to the extent it denies the relief requested
by Comeaux.)
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