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 2007-11

in Re: Michael Anthony Moore ( 2007 )


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  •                 NO. 12-07-00422-CV

     

    IN THE COURT OF APPEALS

     

    TWELFTH COURT OF APPEALS DISTRICT

     

    TYLER, TEXAS

     

     

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    IN RE: MICHAEL ANTHONY MOORE,  §          ORIGINAL PROCEEDING

    RELATOR

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    MEMORANDUM OPINION

                In this original mandamus proceeding, Michael Anthony Moore alleges that, on August 17, 2007 and September 18, 2007, he filed a number of motions in a suit pending in the trial court.1  He further alleges that he has requested the trial court to act on the pending motions, but that the trial court has failed to rule within a reasonable time.  Consequently, he requests that this court issue a “preliminary order in mandamus” commanding the respondent trial judge to file “an answer directed to this petition.”2

                Courts of appeals have the power to compel a trial court to rule on pending motions.  In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.–San Antonio 1998, orig. proceeding).  Before mandamus may issue to require a trial court to rule on a motion, the relator must establish that the court was asked to perform the act and failed or refused to do so within a reasonable time.  See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.–San Antonio 1997, orig. proceeding).  We first note that Moore requests an order commanding the respondent to answer Moore’s mandamus petition, but does not specifically request mandamus relief.  However, we will construe his petition liberally and imply such a request.  See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig. proceeding) (“[W]e review [a pro se] relator’s applications for mandamus with patience and liberality to determine the merits of the complaints.”).  Additionally, Moore has not furnished a record as required by Texas Rule of Appellate Procedure 52.7.  Consequently, we are unable to determine that he has called the trial court's attention to the motions or requested that hearings be set to determine their merit.  Nor can we determine that the trial court has had a reasonable time within which to rule but has failed or refused to do so.  Therefore, we cannot conclude that Moore has shown any abuse of discretion by the trial court.  See In re Villareal, 96 S.W.3d 708, 710 (Tex. App.–Amarillo 2003, orig. proceeding).  Accordingly, the petition for writ of mandamus is denied.

     

                                                                                                         JAMES T. WORTHEN   

                                                                                                                     Chief Justice

     

     

    Opinion delivered November 30, 2007.

    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

     

     

     

     

     

     

     

     

     

                                                                                                                                   

    (PUBLISH)


    1 In this proceeding, Moore purports to act individually and as “pro se of record” for Michael Newsome.  He alleges that both he and Newsome have filed motions in the trial court and that they both seek the requested relief.  However, Newsome has not signed the mandamus petition and Moore is not an attorney.  Therefore, Newsome is not properly before us.  See Jimison by Parker v. Mann, 957 S.W.2d 860, 861 (Tex. App.–Amarillo 1997, no writ).

    2 The respondent is the Honorable Bascom W. Bentley III, Judge of the 369th Judicial District Court, Anderson County, Texas.