in Re Michael Lou Garrett, Relator ( 2006 )

NO. 07-06-0453-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 22, 2006
______________________________
IN RE MICHAEL LOU GARRETT, RELATOR
_________________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ON PETITION FOR WRIT OF MANDAMUS
Relator, Michael Lou Garrett, has filed a Petition for Writ of Mandamus seeking this
court order the Honorable John Board “to immediately perform his legal duty of providing
consideration, decision and ruling in the matter of ‘Plaintiff’s Motion for a Temporary
Restraining Order and Preliminary Injunction’ . . . .” The motion, which relator purports was
filed in cause number 94,426-B on September 19, 2006, requests the trial court restrain
prison officials from “depriving plaintiff of indigent supplies needed and necessary for
processing this lawsuit to trial . . . .” Garrett contends that he is entitled to relief because
the trial court has “refused to act” on his motion. We deny the petition.
A trial court has a ministerial duty to consider and rule on motions properly filed and
pending before the court and mandamus may issue to compel the judge to act. Safety-
Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San Antonio 1997, orig.
proceeding) (citing O’Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex.App.–Tyler 1993,
orig. proceeding). However, the trial court is afforded a reasonable time in which to
perform this ministerial duty. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.–Houston
[1st Dist.] 1992, orig. proceeding). To establish entitlement to mandamus relief for a trial
court’s failure to consider and rule on a motion, the relator must establish that the trial court
had a legal duty to perform a non-discretionary act, was asked to perform the act, and
failed or refused to do so within a reasonable time. In re Chavez, 62 S.W.3d 225, 228
(Tex.App.–Amarillo 2001, orig. proceeding). While the documents relator attached to his
petition fail to establish that relator’s motion was brought to the attention of the trial court,1
we will review the merits of relator’s petition in the interest of judicial economy. See Woods
v. Alvarez, 925 S.W.2d 119, 121 (Tex.App.–Corpus Christi 1996, orig. proceeding).
Relator contends that, because he has an appeal pending in this court, his request
for mandamus relief is not rendered moot because the alleged deprivation of indigent
supplies threatens his ability to prosecute the pending appeal. However, relator requests
mandamus relief relating to the motion he filed in the trial court. A final judgment renders
the granting or denial of a motion for temporary injunction moot. See Pintail Prod. Co. v.
Osprey Petroleum Co., No. 13-06-069-CV, 2006 Tex.App. LEXIS 3154, at *3-*4
(Tex.App.–Corpus Christi April 20, 2006, orig. proceeding) (mem. op.). Thus, we conclude
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Relator contends that he “duly served” a Demand for Performance of Legal Duty
upon the trial court. However, none of the documents provided by relator with his petition
for writ of mandamus provide any evidence that this demand was actually brought to the
trial court’s attention. See In re Posey, No. 07-03-0518-CV, 2004 Tex.App. LEXIS 695, at
*1-*2 (Tex.App.–Amarillo 2004, orig. proceeding).
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that mandamus relief relating to a trial court’s grant or denial of temporary injunctive relief
is unavailable after entry of final judgment.
Finally, mandamus relief is unavailable when adequate remedies are available at
law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Because the trial court’s entry
of final judgment effectively denied relator’s motion for injunctive relief, relator may obtain
redress by way of ordinary appeal and, as a result, is not entitled to mandamus relief. See
Sikh Ctr. of Gulf Coast Area v. Chambers, No. 01-89-01165-CV, 1990 Tex.App. LEXIS 46,
at *2 (Tex.App.–Houston [1st Dist.] January 8, 1990, no writ) (mem. op.).
Accordingly, we deny relator’s petition for writ of mandamus.
Mackey K. Hancock
Justice
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