in Re: Craig MacK

NO. 12-20-00072-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
CRAIG MACK, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
Craig Mack, acting pro se, filed this original proceeding to request that this Court order
Respondent to “respond to all legal documents not previously ruled on and to refrain from further
conspiracy, retaliation, deprivation of rights, prohibited racial discrimination – hideous hate crime
acts.” 1 Attached to Relator’s petition for writ of mandamus is a lengthy motion, dated February 6,
2020, in which Mack asserts breach of the official oath of office, obstruction of court, and multiple
other complaints. 2 The motion is not file marked. In his petition, Relator specifically complains
of the lack of a ruling on this motion.3 No other motions are attached to the petition.
1
Respondent is the Honorable C. Michael Davis, Judge of the 369th District Court in Anderson County,
Texas. Relator also lists the Anderson County District Clerk as a Respondent. The District Clerk is not a judge over
which this Court has mandamus jurisdiction, nor does the record demonstrate that issuance of a writ of mandamus
against the District Clerk is necessary to protect this Court’s jurisdiction. See TEX. GOV’T CODE
ANN. § 22.221(a), (b) (West 2004) (writ power); see also In re Eaton, No. 12–15–00118–CR, 2016 WL 6876502, at
*1 (Tex. App.–Tyler, Nov. 22, 2016, orig. proceeding) (mem. op., not designated for publication) (appellate court
lacked jurisdiction to consider merits of mandamus petition as to district clerk).
2
The record is not clear as to the person or persons designated as Real Party or Parties in Interest. However,
in a previous mandamus proceeding involving the same trial court cause number, Bryan Collier, Hillis R. Wilcox, and
Kisha Stotts are listed as Real Parties in Interest. See In re Mack, No. 12-19-00238-CV, 2019 WL 3024757 (Tex.
App.—Tyler July 10, 2019, orig. proceeding) (mem. op.).
3
Neither Relator’s motion nor his petition is a model of clarity. See TEX. R. APP. P. 38.1(i) (brief must
contain clear and concise argument for contentions made); see also Muhammed v. Plains Pipeline, L.P., No. 12-16-
00189-CV, 2017 WL 2665180, at *2 n.3 (Tex. App.—Tyler June 21, 2017, no pet.) (mem. op.) (pro se litigants are
held to same standards as licensed attorneys and must comply with all applicable rules of procedure; otherwise, pro
se litigants would benefit from an unfair advantage over parties represented by counsel); Joseph v. Willis, No. 05-16-
00995-CV, 2017 WL 1427713, at *1 (Tex. App.—Dallas Apr. 18, 2017, no pet.) (mem. op.) (although reviewing
To obtain a writ of mandamus compelling a trial court to consider and rule on a motion,
the relator must show that the trial court (1) had a legal duty to perform a nondiscretionary act, (2)
was asked to perform the act, and (3) failed or refused to do so. In re Molina, 94 S.W.3d 885, 886
(Tex. App.–San Antonio 2003, orig. proceeding). Generally, a trial court has a nondiscretionary
duty to consider and rule on a motion within a reasonable time. In re Thomas, No. 12–05–00261–
CV, 2005 WL 2155244, at *1 (Tex. App.–Tyler Sept. 7, 2005, orig. proceeding) (mem. op.).
However, a trial court cannot be expected to consider a motion not called to its attention. See In
re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding). It is incumbent
upon the relator to establish that the motion has been called to the trial court’s attention. See id.
Here, Relator has not provided any documentation to demonstrate that he took actions to
call his motion to Respondent’s attention. See In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—
Texarkana 2008, orig. proceeding) (trial court not required to consider motion not called to
its attention; even showing motion was filed with clerk does not prove motion was brought to trial
court’s attention or was presented to trial court with request for ruling); see also Chavez, 62
S.W.3d at 228 (clerk’s knowledge not imputed to trial court). Even assuming Respondent is aware
of the motion and has not ruled, he has a reasonable time in which to rule once the matter is called
to his attention. See Thomas, 2005 WL 2155244, at *1. Whether the trial court has had a
reasonable time within which to rule depends on the circumstances of each case, and “no bright-
line demarcates the boundaries of a reasonable time period.” Chavez, 62 S.W.3d at 228. “Its scope
is dependent upon a myriad of criteria, not the least of which is the trial court’s actual knowledge
of the motion, its overt refusal to act on same, the state of the court’s docket, and the existence of
other judicial and administrative matters which must be addressed first.” Id. at 228–29.
The record does not demonstrate if or when Relator’s motion was filed, but it is dated
February 6, 2020. Relator presents no evidence of the number of other cases, motions, or issues
pending on Respondent’s docket, those which have pended on the docket longer than the present
case, those pending on the docket that lawfully may be entitled to preferential settings, or
Respondent’s schedule. See id. at 229. Therefore, assuming that Relator’s motion was brought to
Respondent’s attention, we cannot say that a reasonable time for ruling has passed. See id. at 228–
court construes briefing rules liberally, brief fails if it makes a court guess about complaints, search record for facts
that may be favorable to party’s position, or conduct legal research that might support contentions made; this is so
even if party is pro se and untrained in law).
29; see also In re Halley, No. 03-15-00310-CV, 2015 WL 4448831, at *2 (Tex. App.—Austin
July 14, 2015, no pet.) (mem. op., not designated for publication) (six month delay not
unreasonable length of time for motion to remain pending). Accordingly, under these
circumstances, Relator has not established his entitlement to mandamus relief. We deny Relator’s
petition for writ of mandamus.
Opinion delivered March 4, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 4, 2020
NO. 12-20-00072-CV
CRAIG MACK,
Relator
V.
HON. C. MICHAEL DAVIS,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by Craig
Mack; who is the relator in appellate cause number 12-20-00072-CV and a party to trial court
cause number DCCV-19-0862-369, in the 369th Judicial District Court of Anderson County,
Texas. Said petition for writ of mandamus having been filed herein on March 2, 2020, and the
same having been duly considered, because it is the opinion of this Court that the writ should not
issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ
of mandamus be, and the same is, hereby denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.