Opinion
No. 10-07-00235-CV
Opinion delivered and filed December 5, 2007.
Original Proceeding.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA, (Chief Justice GRAY concurs with a note).
(Chief Justice Gray concurs with a note, but not a separate opinion, as follows: "The proof of service reflects that the petition for writ of mandamus was never served on the real-party-in-interest or the respondent.
The factual allegations in the petition are not sworn to as required.
There is no record as required to support the allegations regarding what motions, if any, were filed, when they were filed, or whether there was ever a request for a setting of any motion for hearing, or the matter for trial.
A staff attorney at the Court determined the petitioner was a pauper and could proceed without the advance payment of cost without my knowledge or participation in that determination.
A response was requested by a majority of the Court. I would not have requested a response until the foregoing problems were resolved.
Now, because we do not have an adequate record, the mandamus is denied. I would have preferred to get to this determination in a procedurally proper posture, without the foregoing issues, but it is the right determination.
I respectfully concur in only the judgment of the Court which denies the petition for writ of mandamus. It should have been denied for the foregoing reasons in August when it was filed.")
MEMORANDUM OPINION
Relator Arcade Joseph Comeaux, a state prison inmate proceeding pro se, seeks a writ of mandamus against Respondent, the Honorable William L. McAdams, Judge of the 12th District Court of Walker County, on the ground that Respondent will not rule on various motions filed by Comeaux in his pending civil action against the Texas Department of Criminal Justice, Institutional Division (TDCJ). Comeaux's civil action was filed in 2002, over five years ago. The trial court initially dismissed it, but the Fourteenth Court of Appeals (at that time, Walker County was in the appellate district of the Fourteenth) found that the dismissal was improper and reversed and remanded the case for further proceedings. See Comeaux v. Texas Dep't. Crim. Justice, Inst. Div., No. 14-02-01283-CV, 2005 WL 2978891 (Tex.App.-Houston [14th Dist.] Nov. 8, 2005, no pet.) (mem. op).
Comeaux's mandamus petition generally alleges that Respondent has refused to proceed with his case in a timely and fair manner. Comeaux identifies two motions (a motion to deny defendants qualified immunity and a motion to transfer venue) and mentions five to six other pretrial motions that he claims Respondent refuses to rule on. Comeaux's mandamus petition also complains about: the trial court's alleged practice of using prison guards during trial proceedings to monitor inmate litigants; the intentional destruction of evidence by the defendant; the defendant's refusal to allow Comeaux to obtain affidavit evidence from other inmates; the prison law library supervisor's (Lt. Stambaugh's) alleged denial of fair access to the prison law library and its materials. Comeaux's petition also includes a motion for the appointment of an attorney. Comeaux has not filed a record in support of his petition. See TEX. R. APP. P. 52.7. We take these allegations seriously, as we are certain the trial court does as well.
We requested a response to Comeaux's mandamus petition, and the Attorney General, which represents TDCJ, has filed a response. TDCJ asserts that Comeaux's suit alleges that TDCJ confiscated his sole writing device, destroyed Comeaux's legal materials, denied him access to the prison law library, used unwarranted force against him, retaliated against him because of his litigation, denied him due process, grossly neglected his medical problems, and implemented unconstitutional policies.
We will grant mandamus relief if there has been an abuse of discretion and the relator has no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-38 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial judge has a reasonable time to perform the ministerial duty of considering and ruling on a motion properly filed and before the judge. In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001, orig. proceeding); In re Martinez Ramirez, 994 S.W.2d 682, 683-84 (Tex.App.-San Antonio 1998, orig. proceeding). But that duty generally does not arise until the movant has brought the motion to the trial judge's attention, and mandamus will not lie unless the movant makes such a showing and the trial judge then fails or refuses to rule within a reasonable time. See Chavez, 62 S.W.3d at 228.
In this proceeding, Comeaux has not shown with a record that he has brought the various motions to Respondent's attention. Thus, we cannot say that Respondent has abused his discretion, but we are confident that Respondent will proceed to dispose of Comeaux's motions and lawsuit in a timely fashion. See In re Nabelek, 2007 WL 416396 (Tex.App.-Waco Feb. 7, 2007, orig. proceeding) (mem. op. on reh'g).
We acknowledge the burden of pro se inmate litigation, but as long as a suit satisfies Chapter 14 of the Civil Practice and Remedies Code, our judicial system must function for such litigation as it does with any other. In addition to providing litigants with their "day in court," such functioning will render unnecessary original proceedings such as this one.
We deny the petition for writ of mandamus and the motion for appointment of counsel.