Opinion
03-23-00499-CV
08-31-2023
In re Patrick Earl Tarkington
Do Not Publish
ORIGINAL PROCEEDING FROM COMAL COUNTY
Before Justices Baker, Triana, and Smith
MEMORANDUM OPINION
Edward Smith, Justice
Relator has filed a petition for writ of mandamus complaining of the trial court's alleged failure to hold a hearing or rule on his plea to the jurisdiction, which he asserts was filed on approximately April 17, 2023. He asks that we order the court to rule on his plea and order the district clerk to send him "time-stamped copies" of various documents, including the plea, the indictment from relator's underlying criminal case, and two motions to dismiss. Having reviewed the petition and the record provided, we deny the petition for writ of mandamus. See Tex. R. App. P. 52.8(a); see also Tex. R. App. P. 52.7(a).
Relator also asserts that he has filed a "motion to set for hearing and ruling and objection to denial of access to courts" concerning the plea.
With respect to relator's request that we order the district clerk to provide him with copies of his requested documents, we lack jurisdiction to grant relief. We have jurisdiction "to issue writs of mandamus against district and county court judges, to issue writs of mandamus against a district judge acting as magistrate in a court of inquiry, and to issue all other writs necessary to enforce [our] own jurisdiction." In re Turner, No. 02-13-00408-CV, 2013WL 6196300, at *1 (Tex. App.-Fort Worth Nov. 25, 2013, orig. proceeding) (per curiam) (mem. op.) (citing Tex. Gov't Code § 22.221). We do not have mandamus jurisdiction over a district clerk unless such is necessary to enforce our jurisdiction. Id.; see, e.g., In re Washington, 7 S.W.3d 181, 182 (Tex. App.-Houston [1st Dist.] 1999, orig. proceeding) (per curiam) (mem. op.); In re Coronado, 980 S.W.2d 691, 692 (Tex. App.-San Antonio 1998, orig. proceeding) (per curiam); see also In re Jackson, No. 02-10-00445-CV, 2010 WL 5395827, at *1 (Tex. App.-Fort Worth Dec. 30, 2010, orig. proceeding) (per curiam) (mem. op.). Relator has not demonstrated that the exercise of our writ power against the district clerk is necessary to enforce our jurisdiction.
Insomuch as relator seeks relief from the trial court's alleged failure to act on relator's plea to the jurisdiction, it is his burden properly to request and establish entitlement to such relief, including by providing us with a sufficient record from which to evaluate his claims. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); In re Smith, No. 03-14-00478-CV, 2014 WL 4079922, at *2 (Tex. App.-Austin Aug. 13, 2014, orig. proceeding) (mem. op.) (denying mandamus relief when relator failed to provide sufficient record); see also Tex. R. App. P. 52.7(a) (requiring relator to file record containing sworn copies "of every document that is material to [his] claim for relief and that was filed in any underlying proceeding"). To establish an abuse of discretion for failure to rule, relator must show that: (1) the trial court had a legal duty to rule on his plea to the jurisdiction, (2) he made a demand for the trial court to rule, and (3) the trial court failed or refused to rule within a reasonable time. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001, orig. proceeding).
Relator has not provided us with a file-stamped copy of his plea or "motion to set for hearing and ruling." Thus, he has failed to show that a proper filing is pending before the trial court or that the court is aware of the filing and has been asked to rule. See In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.-Waco 2008, orig. proceeding) (observing that mandamus record failed to establish that relator requested ruling or called motion to trial court's attention and that "mere filing of a motion with a trial court clerk does not equate to a request that the trial court rule on the motion"). Moreover, even had relator provided us with a such a record, he has not shown that his plea to the jurisdiction has been pending for an unreasonable amount of time. See Chavez, 62 S.W.3d at 228-29 (explaining that "no bright line demarcates the boundaries of a reasonable time period" and scope of "reasonable time period" depends upon multiple criteria, including the trial court's "overt refusal to act on [the plea], the state of the court's docket, and the existence of other judicial and administrative matters which must be addressed first. So too must the trial court's inherent power to control its own docket be factored into the mix." (citations omitted)); see also In re Halley, No. 03-15-00310-CV, 2015 WL 4448831, at *2 (Tex. App.-Austin July 14, 2015) (orig. proceeding) (mem. op.) (concluding that delay of less than six months did not constitute unreasonable length of time under "failure to rule" analysis); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.-Texarkana 2008, orig. proceeding) (determining that six-month delay in ruling would not be unreasonable).
On this record, we conclude that relator has failed to show entitlement to mandamus relief. Accordingly, his petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).