in Re: Billy L. Hughes, Relator ( 2003 )

NO. 07-03-0426-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 10, 2003
______________________________
IN RE BILLY L. HUGHES, RELATOR
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
By this original proceeding, relator Billy L. Hughes, an inmate proceeding pro se
and in forma pauperis, seeks a writ of mandamus to compel the Honorable Lee Waters,
Presiding Judge of the 223rd District Court of Gray County, to rule on his motion for new
trial and motion to modify and amend his divorce decree in cause number 30598. For the
following reasons, relator’s petition for a writ of mandamus must be denied.
Relator must satisfy three requirements to establish his entitlement to the issuance
of a writ of mandamus, to-wit: (1) a legal 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). When a
motion is properly filed and pending before a trial court, the act of considering and ruling
upon the motion is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158
(Tex. 1992). However, the trial court has a reasonable time within which to perform that
ministerial duty. 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). Other factors are influential such
as the trial court’s actual knowledge of the motion, its overt refusal to act, the state of its
docket, and other judicial and administrative duties which must be addressed. In re
Villarreal, 96 S.W.3d 708, 711 (Tex.App.–Amarillo 2003, orig. proceeding). Further, the
party requesting relief must provide a sufficient record to establish his entitlement to
mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); see also In re
Bates, 65 S.W.3d 133, 135 (Tex.App.–Amarillo 2001, orig. proceeding). By his petition,
relator alleges he filed his motions on April 21, 2003, and on August 11, 2003, he wrote
the District Clerk inquiring about the status of the motions. He further asserts that on
August 18, 2003, he was notified by the District Clerk that the trial court had not ruled on
his motions.
Relator’s petition is not accompanied by certified or sworn copies of the motions he
filed nor by any copies of correspondence with the District Clerk. See Tex. R. App. P.
52.3(j)(1)(A) & (j)(2). Relator has not met his burden to provide a sufficient record
demonstrating that properly filed motions have awaited disposition for an unreasonable
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length of time. Also, we decline to hold that the trial court’s failure to rule on relator’s
motions within four months of being filed constitutes an unreasonable delay. Moreover,
relator has not established he demanded performance nor the trial court’s refusal to act.
Stoner, 586 S.W.2d at 846.
Accordingly, relator’s petition for writ of mandamus is denied.
Don H. Reavis
Justice
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