Opinion
No. 10-06-00241-CV
Opinion delivered and filed October 11, 2006.
Original Proceeding.
Petition denied.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurs in the judgment. See In re NABELEK, 10-06-00241-CV, 2006 WL 2692818 (Tex.App.-Waco, Sept. 20, 2006) (Dissenting Opinion to Order Requesting a Response to a Petition for Writ of Mandamus) (C.J. GRAY dissenting).)
MEMORANDUM OPINION
Relator Ivo Nabelek seeks a writ of mandamus, complaining that Respondent, the Honorable Kenneth H. Keeling, will not rule on a motion that has been pending in the underlying action since May 2005. The underlying action is a civil rights suit brought by Nabelek, a pro se state prison inmate, against prison officials and employees. In it, Nabelek filed a "Motion For a Court Order To Direct the Defendants and TDCJ ID Not To Destroy Disciplinary Records and Other Evidence and Property Items Pending Discovery and Disposition of This Suit." According to Nabelek, he has made several requests for the trial court to rule on this motion.
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). Whether the judge has acted within a "reasonable" period of time depends on the circumstances of the case. See, e.g., Martinez Ramirez, 994 S.W.2d at 684 (18 months too long for trial court not to have ruled on plaintiff-inmate's motion for default judgment).
The Attorney General, who represents the defendants in the underlying action, has filed a response to the petition, and notes that TDCJ is a state agency that is subject to the records-retention provisions of the Government Code and that these provisions protect Nabelek's records from destruction because he has filed the underlying action (which was filed in March 2005). See TEX. GOV'T CODE ANN. § 441.187(b) (Vernon 2004). The Attorney General's response for the defendants states: "His [Nabelek's] records will not be destroyed." Based on these representations and under the circumstances of the underlying case, the petition for writ of mandamus is denied.
We note and disagree with the Attorney General's assertion that, if Nabelek's documents are destroyed, a spoliation instruction would provide an adequate remedy.