in Re Steven Boyd, Relator ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
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No. 07-19-00279-CV
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IN RE STEVEN BOYD, RELATOR
Original Proceeding
Arising From Proceedings Before the 223rd District Court
Gray County, Texas
Trial Court No. 39,194; Honorable Phil N. Vanderpool, Presiding
August 8, 2019
ORIGINAL PROCEEDING
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Relator, Steven Boyd, an inmate proceeding pro se and in forma pauperis, seeks
a writ of mandamus to compel the Honorable Phil N. Vanderpool to rule on a pending
divorce action. Relator has complied with all the requirements of Rule 52.3 of the Texas
Rules of Appellate Procedure. By two issues, he contends (1) the trial court arbitrarily
refused to rule on his petition for divorce and (2) he is entitled to relief as a matter of law.
For the reasons explained herein, we deny Relator’s request.
BACKGROUND
Relator filed a pro se petition for divorce on March 7, 2018. A month later, he filed
a Motion for Issuance of Bench Warrant for the purpose of attending a hearing in his
divorce action. On September 7, 2018, he filed a motion for summary judgment seeking
a final decree of divorce. By letter to the Gray County District Clerk file-stamped October
25, 2018, he inquired on the status of his divorce petition and asked “when it will be
addressed on the merits.” Finally, on April 17, 2019, Relator filed a Motion for Trial Setting
requesting that his divorce petition be heard or that the trial court render a judgment “on
or before May 11, 2019.”
MANDAMUS STANDARD OF REVIEW
Mandamus is an extraordinary remedy granted only when a relator can show that
(1) the trial court abused its discretion and (2) that no adequate appellate remedy exists.
In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per
curiam). When seeking mandamus relief, a relator bears the burden of proving these two
requirements. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
To establish an abuse of discretion, the relator must demonstrate the trial court
acted unreasonably, arbitrarily, or without reference to any guiding rules or principles.
See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To
establish no adequate remedy by appeal, the relator must show there is no adequate
remedy at law to address the alleged harm and that the act requested is a ministerial act,
not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist.
Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).
Furthermore, in order to establish a ministerial act, a relator must also show (1) a legal
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duty to perform; (2) a demand for performance; and (3) a refusal to act. Stoner v. Massey,
586 S.W.2d 843, 846 (Tex. 1979).
ANALYSIS
Relying on In re Christensen, 39 S.W.3d 250 (Tex. App.—Amarillo 2000, orig.
proceeding), Relator maintains he is entitled to a ruling in his divorce action that has been
pending for more than twelve months. In re Christensen involved a motion by an
incarcerated individual to review his trial and appellate record under the Texas Public
Information Act. Id. Christensen filed a proposed order on his motion, a setting request
for June 12, 2000, and a proposed order on that motion. Id. at 251. Christensen
subsequently filed a motion to compel. This court found that Christensen was entitled to
mandamus relief in the form of having his motion heard and ruled on by the trial court. Id.
(citing Creel v. District Atty. For Medina County, 818 S.W.2d 45, 46 (Tex. 1991)).
In re Christensen is distinguishable. In that proceeding, the respondent judge filed
a response to the petition for writ of mandamus. This court noted that the respondent did
not (1) contest relator’s recitation of facts, (2) question presentment of relator’s motion,
(3) assert that he had set or ruled on the motion, or (4) question whether the motion was
properly filed and properly pending. In re Christensen, 39 S.W.3d at 251. This court
found that relator was entitled to have his motion heard and ruled on but that the ruling
was within the trial court’s discretion. Id.
In this proceeding, Relator has filed a letter to the district clerk and a motion for a
trial setting which was filed by the district clerk. The limited mandamus record does not
reflect that Judge Vanderpool filed a response to Relator’s petition. Nor is there anything
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in the record to indicate the trial court is aware of the pending divorce proceeding and
subsequent motions filed thereafter. A trial court cannot be expected to consider a
request for a ruling not called to its attention. In re Chavez, 62 S.W.3d 225, 228 (Tex.
App.—Amarillo 2001, orig. proceeding). Filing an inquiry with the district clerk does not
prove the petition for divorce or any pending motions were brought to the trial court’s
attention. A clerk’s knowledge of a filing is not imputed to the trial court. Id. Merely
alleging that something was filed with or mailed to the district clerk does not satisfy that
requirement. In re Goodson, No. 07-18-00114-CV, 2018 Tex. App. LEXIS 3175, at *3
(Tex. App.—Amarillo May 4, 2018, orig. proceeding) (mem. op., not designated for
publication). Relator has failed to establish that his petition for divorce and motion for a
trial setting was brought to the attention of the trial court. Issues one and two are
overruled.
CONCLUSION
Consequently, Relator’s petition for writ of mandamus is denied.
Per Curiam
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