in Re Michael Dewayne Rickett ( 2020 )

DENIED and Opinion Filed February 14, 2020
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01308-CV
IN RE MICHAEL DEWAYNE RICKETT, Relator
Original Proceeding from the Probate Court No. 2
Dallas County, Texas
Trial Court Cause No. PR-17-00604-2
MEMORANDUM OPINION
Before Justices Bridges, Osborne, and Carlyle
Opinion by Justice Carlyle
This is relator’s third writ of mandamus to compel the respondent to set a hearing on his
February 17, 2017 application to determine heirship on his mother’s estate. In the prior mandamus
proceedings, appellate cause nos. 05-19-00019-CV and 05-19-00523-CV, the respondent set the
case for hearing after which we denied the writ applications as moot. Relator now contends that
there were no hearings and the respondent has disobeyed our orders. He requests mandamus relief
to compel the trial court to set a hearing and sanctions and a contempt order for disobeying our
“two previous orders.” We deny relief.
The respondent filed a response on December 16, 2019,1 stating that a telephonic hearing
was scheduled for June 3, 2019. Two witnesses were subpoenaed and both appeared for the
telephonic hearing. Relator, however, did not “appear” for the hearing because the prison notary
necessary to swear him in as a witness had a family emergency. The hearing was rescheduled for
1
By separate order, the Court directs the Clerk of the Court to transfer the response to the correct file.
June 28, 2019. Before that date, relator filed a motion to recuse the respondent. The necessary
chain of events resulting from relator’s motion to recuse respondent caused a lengthy delay in the
proceedings. Relator testified by telephone during a November 12, 2019 recusal hearing, and the
presiding administrative judge denied relator’s recusal motion. The respondent rescheduled
relator’s hearing for February 10, 2020, stating that this was the earliest date respondent and
counsel were available to conduct the hearing. Court documents filed with the Respondent’s
response support these explanations.
A petition seeking mandamus relief must contain a certification stating that the relator “has
reviewed the petition and concluded that every factual statement in the petition is supported by
competent evidence included in the appendix or record.” TEX. R. APP. P. 52.3(j). It must track the
quoted language exactly, according to cases that bind this Court. See In re Butler, 270 S.W.3d 757,
758–59 (Tex. App.—Dallas 2008, orig. proceeding). Relator’s petition is improperly certified and
lacks any supporting record. See TEX. R. APP. P. 52.3(j), 52.3(k)(1)(A), 52.7(a)(1). Under our
precedents, an improperly certified petition not backed with a record containing certified or sworn
copies of material documents does not provide a basis for mandamus relief. See Butler, 270 S.W.3d
at 758–59; see also Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding) (as
party seeking relief, relator bears burden of providing sufficient mandamus record to establish
right to mandamus relief).
In any event, relator has not persuaded us that he is entitled to mandamus relief on the
merits. Mandamus relief is appropriate only when a relator establishes (1) the trial court clearly
abused its discretion or failed to perform a ministerial duty and (2) that relator has no adequate
remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). The relator
bears the burden to demonstrate the relator is entitled to mandamus relief. See In re Mesa
Petroleum Partners, LP, 538 S.W.3d 153, 156 (Tex. App.—El Paso 2017, orig. proceeding). The
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relator meets this burden by showing (1) the trial court had a non-discretionary, ministerial, legal
duty to perform, (2) relator asked the trial court to perform the duty, and (3) it refused to do so. In
re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig. proceeding); Mesa, 538 S.W.3d at 156.
Even when the trial court has a duty to perform, it must be afforded a reasonable time to
perform. See Mesa, 538 S.W.3d at 157. The time period considered reasonable depends upon the
facts and circumstances of each case. Id. Determining whether the trial court has had a reasonable
time may involve consideration of criteria such as the trial court’s actual knowledge of the matter,
whether it has overtly refused to act on the matter, the state of the trial court’s docket, the existence
of more pressing judicial and administrative matters, and the trial court’s inherent power to control
its own docket. See In re Chavez, 62 S.W.3d 225, 228–29 (Tex. App.—Amarillo 2001, orig.
proceeding). Relator bears the burden to provide the appellate court with evidence weighing on
the criteria to consider in assessing the reasonableness of the alleged delay. See id. at 229.
In this case, the record shows the respondent has not disobeyed any order of this Court. To
the contrary, the respondent appears to be working to accommodate relator with the obvious
difficulties that his incarceration presents, and has reset his case for hearing again. Most of the
recent delay in the case appears attributable to relator’s unsuccessful effort to recuse respondent
rather than to respondent’s inaction. The non-recusal-related delay does not support mandamus
relief. Under the circumstances presented as reflected on the record before us, we conclude relator
has not shown he is entitled to mandamus relief. Prado, 522 S.W.3d at 2; Butler, 270 S.W.3d at
758–59. Mesa, 538 S.W.3d at 156.
We deny relator’s petition for writ of mandamus.
/Cory L. Carlyle/
191308F.P05 CORY L. CARLYLE
JUSTICE
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