Opinion
08-22-00157-CV
08-25-2022
IN RE:MARK WALTERS Relator.
AN ORIGINAL PROCEEDING IN MANDAMUS
Before Rodriguez, C.J., Palafox, and Alley, JJ.
MEMORANDUM OPINION
GINA M. PALAFOX, JUSTICE
Relator Mark Walters filed a petition for a writ of mandamus against the Honorable Francisco Dominguez, judge of the 205th Judicial District Court of Hudspeth County, Texas. The petition is denied.
BACKGROUND
Relator indicates in his petition that he filed a motion with Judge Dominguez requesting that he appoint a district clerk pro tempore under section 51.308 of the Texas Government Code. Relator attached to his petition a letter dated July 22, 2022, that he purportedly mailed to Judge Dominguez on July 23, which outlines his request. The letter is not file stamped and nothing else in the mandamus record establishes that Judge Dominguez received the letter. Judge Dominguez has not ruled on Relator's motion. Consequently, Relator filed this petition for a writ of mandamus on August 16, 2022, requesting that the Court order Judge Dominguez to rule on his motion.
DISCUSSION
To be entitled to mandamus relief, a relator generally must meet two requirements. First, the relator must show that the trial court clearly abused its discretion. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding). Second, the relator must demonstrate that there is no adequate remedy by appeal. Id. at 135-36. The burden is on the relator to show he is entitled to mandamus relief. See In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding). Consequently, Rule 52.7(a) of the Texas Rules of Appellate Procedure requires a relator to file a certified or sworn copy of every document that is relevant to the claim for relief filed in the underlying proceeding. Tex.R.App.P. 52.7(a). Here, Relator has failed in this obligation. The July 22 letter he filed with his petition is not file-stamped and bears no other indication it was actually received by or filed by the district court. Relator also does not allege in his petition or provide documentation in his mandamus record that the motion was presented to the district court or that he asked the district court to rule on the motion. As a result, Relator's petition is denied because he failed to provide a mandamus record sufficient to prove he is entitled to relief. See In re Vaughn, No. 06-13-00124-CR, 2013 WL 12297769, at *1 (Tex. App - Texarkana July 5, 2013, orig. proceeding) (mem. op., not designated for publication).
We would deny Relator's petition even if he had provided a sufficient mandamus record because he did not give the district court a reasonable amount of time in which to rule on his motion before he filed his petition. "When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act." In re Martinez Ramirez, 994 S.W.2d 682, 683 (Tex. App-San Antonio 1998, orig. proceeding) (quoting Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App-San Antonio 1997, orig. proceeding)). But a trial court "has a reasonable time within which to consider a motion and to rule." In re Pierce, No. 05-18-00232-CV, 2018 WL 1249939, at *1 (Tex. App-Dallas Mar. 12, 2018, orig. proceeding) (mem. op., not designated for publication). "[N]o bright line separates a reasonable time from an unreasonable one" in this context. In re Blakeney, 254 S.W.3d 659, 662 (Tex. App -Texarkana 2008, orig. proceeding). However, other courts of appeal have denied petitions for writ of mandamus when a trial court has not ruled on a motion within six months of it being filed. Id. at 662-63 (finding it was not unreasonable for a trial court to have not ruled on a motion for contempt within six months); In re Laffery, No. 13-11-00515-CR, 2011 WL 3557532, at *1 (Tex. App-Corpus Christi-Edinburg Aug. 11, 2011, orig. proceeding) (mem. op., not designated for publication) (finding that a time period of nine days does not constitute an unreasonable period of time for the trial court consider a motion). Here, Relator alleged in his petition that he mailed his request to Judge Dominguez on July 23. Even if we assume Judge Dominguez received the letter the same day it was mailed, Relator waited only twenty-four days before filing his petition with the Court on August 16. Twenty-four days does not constitute an unreasonable amount of time for the trial court to consider the motion. Therefore, Relator is not entitled to mandamus relief.
Finally, the Court also denies Relator's petition to the extent he is requesting that the Court order Judge Dominguez to grant his motion for an appointment of a district clerk pro tempore. This Court has held that section 51.308 of the Texas Government Code gives the trial court discretion on whether to appoint a district clerk pro tempore: "The statute provides that a trial court 'may appoint a clerk pro tempore.'" Hunt v. El Paso Cty. Dist. Clerk, No. 08-00-00444-CV, 2002 WL 997772, at *3 (Tex. App-El Paso May 16, 2002, pet. denied) (not designated for publication); see also Tex. Gov't Code Ann. § 51.308. As a result, even assuming Relator had provided a sufficient mandamus record and given the district court a reasonable period of time on which to rule, he would not be able to demonstrate on this record that the trial court clearly abused its discretion in failing to appoint a district clerk pro tempore. Hunt, 2002 WL 997772, at *3.
CONCLUSION
After reviewing the mandamus petition and record, we conclude that Relator has failed to show entitlement to mandamus relief on this record. Accordingly, we deny the petition for writ of mandamus.