in Re: Kevin Shawn Armstrong ( 2011 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00100-CV
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IN RE:
KEVIN SHAWN ARMSTRONG
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Kevin Shawn Armstrong has filed a petition for writ of mandamus in which he asks this
Court to order the 115th Judicial District Court of Marion County, Texas, to rule on several
motions1 he filed with the District Clerk of Marion County.2 The motions were filed October 15,
2010. When the trial court did not rule on his motions, Armstrong filed a ―request for ruling on
pending motions‖ February 3, 2011. Armstrong argues that the trial court has failed or refused to
fulfill its ministerial duty to consider and rule on his motions.
We conditionally grant Armstrong’s petition because he is entitled to have a ruling on his
motions.
We may grant a petition for writ of mandamus when the relator shows there is no adequate
remedy at law to redress the alleged harm and that the act to be compelled is purely ministerial.
Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006) (orig. proceeding) (citing
Winters v. Presiding Judge of Criminal Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex. Crim.
App. 2003)). When a motion is properly filed and pending before a trial court, considering and
ruling on that motion is a ministerial act, to compel which mandamus may issue. In re Kleven,
100 S.W.3d 643, 644 (Tex. App.—Texarkana 2003, orig. proceeding); see also Safety-Kleen
1
Attached to Armstrong’s petition are file-stamped copies of motions to modify custody and visitation, to compel
performance of attorney ad litem, and for telephone conference.
2
When Armstrong filed his motions with the district clerk, his cover letter requested that the clerk bring the motions to
the trial court’s attention. See In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding)
(―The trial court is not required to consider a motion unless it is called to the court’s attention.‖).
2
Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding).
A trial court has a ministerial duty to consider and rule on a motion brought to the court’s
attention within a reasonable amount of time. In re Bonds, 57 S.W.3d 456, 457 (Tex.
App.—San Antonio 2001, orig. proceeding). Refusal to rule on a pending motion within a
reasonable amount of time can be remedied by mandamus. See In re Shredder Co., 225 S.W.3d
676, 679 (Tex. App.—El Paso 2006, orig. proceeding) (citing In re Greenwell, 160 S.W.3d 286,
288 (Tex. App.—Texarkana 2005, orig. proceeding)). Whether a reasonable time has lapsed
depends on the circumstances of each case. Blakeney, 254 S.W.3d at 662. ―Determining what
time period is reasonable is not subject to exact formulation. . . . Moreover, no bright line
separates a reasonable time period from an unreasonable one.‖ Id. (citing In re Keeter, 134
S.W.3d 250, 253 (Tex. App.—Waco 2003, orig. proceeding)). Periods of eighteen months,
thirteen months, and three months have been held to be too long for a trial court not to rule.
Kleven, 100 S.W.3d at 644–45; In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.—San Antonio
1998, orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265 (Tex. App.—Tyler 1976, orig.
proceeding) (per curiam).
3
In this case, the motions have been pending with the trial court since October 15, 2010.
Armstrong is entitled to have a ruling on his motions. The relief sought is, therefore,
conditionally granted. The writ will issue only if the trial court fails to take appropriate action in
accordance with this opinion.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 15, 2011
Date Decided: November 16, 2011
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