in Re Richard Lee Glenn ( 2006 )

NO. 07-06-0446-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 20, 2006
______________________________
IN RE RICHARD LEE GLENN, RELATOR
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ON PETITION FOR WRIT OF MANDAMUS
Relator Richard Lee Glenn, proceeding pro se, seeks a writ of mandamus directing
the Honorable John Board, Judge of the 181st District Court of Potter County, to hold a
hearing and rule on his application for writ of mandamus seeking to compel Caroline
Woodburn, Potter County District Clerk, to issue citation in a civil case. We will deny
relator's petition.
Relator alleges he filed a civil action in the 181st District Court on December 12,
2005, and that he sought issuance of citation through the district clerk’s office. Relator
alleges that he has made requests of the district clerk’s office by letter on April 17th, June
7th, and August 9th of 2006. He further alleges that he has received no response from the
district clerk’s office and that no citations have been issued from said office. No certified
or sworn copies of the application were included with the petition for writ of mandamus as
required by Rule 52.3(j)(1)(A) of the Texas Rules of Appellate Procedure. Relator
maintains the trial court abused its discretion by refusing to hear and rule on his motions.
He also asserts he has no adequate remedy by law.
"Mandamus issues only to correct a clear abuse of discretion or the violation of a
duty imposed by law when there is no other adequate remedy by law." Walker v. Packer,
827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). To show entitlement to
mandamus relief in circumstances such as those presented by relator's petition, he must
satisfy three elements: first, a legal duty to perform a non-discretionary act; second, a
demand for performance; and third, refusal of that demand. See Stoner v. Massey, 586
S.W.2d 843, 846 (Tex. 1979). When a motion is properly pending before a trial court, the
act of considering and ruling on the motion is a ministerial act. See Eli Lilly and Co. v.
Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding). However, the trial court has
a reasonable time within which to perform that ministerial duty. See Safety-Kleen Corp. v.
Garcia, 945 S.W.2d 268, 269 (Tex.App.–San Antonio 1997) (orig. proceeding). Whether
a reasonable period of time has lapsed is dependent on the circumstances of each case.
Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992) (orig.
proceeding).
Additionally, the party seeking relief has the burden to provide a sufficient record to
establish entitlement to mandamus relief. Walker, 827 S.W.2d at 837. See also Ex parte
Bates, 65 S.W.3d 133, 135 (Tex.App.–Amarillo 2001) (orig. proceeding). The record must
show the motion was presented to the trial court and it refused to act. In re Villarreal, 96
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S.W.3d 708, 710 n.2 (Tex.App.–Amarillo 2003) (orig. proceeding). Relator asserts that on
September 13, 2006, he mailed his application to the trial court judge seeking the court to
compel the district clerk to issue citations. However, he does not sufficiently demonstrate
that his application was received by the trial judge, filed with the district clerk’s office, and
that the district court has refused to act on it. We must conclude relator has not satisfied
his burden to provide a sufficient record demonstrating that a properly pending motion has
awaited disposition for an unreasonable length of time or that the trial court has refused to
perform a ministerial act.
Moreover, as noted, relator's petition for writ of mandamus does not substantially
comply with the requirements of Rule 52.3 of the Texas Rules of Appellate Procedure. See
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) (pro se litigants must
comply with the same applicable procedural rules as counsel-represented litigants). For
these reasons, relator's petition for writ of mandamus is denied.
Mackey K. Hancock
Justice
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