in Re Don Smith, Relator ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00402-CV
IN RE DON SMITH, RELATOR
OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
January 28, 2020
MEMORANDUM OPINION
Before PIRTLE and PARKER and DOSS, JJ.
Relator Don Smith, appearing pro se, filed a petition asking this Court to issue a
writ of mandamus against respondent, the Honorable John B. Board, judge of the 181st
District Court of Randall County. He seeks an order compelling Judge Board to rule on
a motion he filed on August 19, 2019, to rescind the trial court’s order to withdraw funds
for court costs. We deny the petition.
To establish a right to mandamus relief, relator must establish that (1) the trial court
had a legal duty to perform a non-discretionary act, (2) performance was demanded, and
(3) the court refused to act. O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex.
1992) (orig. proceeding); In re Posey, No. 07-03-00518-CV, 2004 Tex. App. LEXIS 695,
at *2 (Tex. App.—Amarillo Jan. 22, 2004, orig. proceeding) (mem. op.). A trial court
commits a clear abuse of discretion when it fails to rule within a reasonable time on a
properly-presented motion. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.
App.—San Antonio 1997, orig. proceeding). The act of considering and ruling on a motion
that is properly filed and pending before a court is ministerial, and mandamus may issue
to compel the trial judge to act. In re Quiroz, No. 05-17-00742-CV, 2017 Tex. App. LEXIS
7423, at *2 (Tex. App.—Dallas Aug. 7, 2017, orig. proceeding) (mem. op.) (citing Safety-
Kleen Corp., 945 S.W.2d at 269).
There are several reasons relator has failed to show that he is entitled to the
mandamus relief he seeks. First, his petition fails to meet the mandatory requirements of
Rule 52 of the Texas Rules of Appellate Procedure. Rule 52.3(k)(1)(a) requires the
petition to include “a certified or sworn copy of any order complained of, or any other
document showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(a). Although
relator’s petition includes a purported copy of the motion and request for hearing he
asserts he filed with the district clerk, the documents do not bear file stamps nor
certifications from the district clerk. And while relator included an unsworn declaration at
the conclusion of his petition, his declaration does not purport to authenticate the attached
documents and does not satisfy the certification requirement of Rule 52.3(j). See TEX. R.
APP. P. 52.3(j). Relator’s failure to comply with Rule 52 requires denial of his petition.
Second, nothing indicates that the trial court is aware of relator’s motion or his
subsequent letter inquiring as to its status. A trial court cannot be expected to consider
a request not called to its attention. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—
Amarillo 2001, orig. proceeding). A clerk’s knowledge of a filing is not imputed to the trial
court. Id. Relator has failed to establish that his motion and request for a hearing were
brought to the attention of the trial court.
2
Finally, even if relator had both complied with Rule 52 and demonstrated that his
pleadings were presented to the trial court, we must consider the question of whether the
trial court failed to rule within a reasonable amount of time. Relator asserts that he filed
his motion on August 19, 2019. Relator sought mandamus relief on November 13, 2019,
eighty-six days after filing his motion. Relator contends that this time period exceeds the
boundaries of a reasonable period for a trial court to rule. In response, we reiterate that
no bright line demarcates the limits of a reasonable time period. Id. As we explained in
In re Chavez, the party requesting mandamus relief on this basis has the burden of
demonstrating the unreasonableness of the court’s delay by providing evidence of, for
example, the trial court’s actual knowledge of the matter, its overt refusal to act, the state
of the trial court’s docket, and the existence of other judicial and administrative matters
requiring the trial court’s attention. Id. at 228-29. In the absence of such evidence, and
bearing in mind the wide discretion a trial court has over its own docket, 1 we cannot
conclude that Judge Board acted unreasonably in failing to act on relator’s motion in
eighty-six days.
For the foregoing reasons, relator’s petition for writ of mandamus is denied.
Judy C. Parker
Justice
Pirtle, J., dissenting.
1 See Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 693-94 (Tex. App.—Amarillo 1998, pet.
denied).
3