                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-17-00373-CV


                        IN RE REIDIE JAMES JACKSON, RELATOR


                                 ORIGINAL PROCEEDING

                                       January 2, 2018

                              MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Relator Reidie James Jackson, appearing pro se, filed a petition asking the Court

to issue a writ of mandamus against respondent, the Honorable Ana Estevez, judge of

the 251st District Court of Potter County. He seeks an order compelling Judge Estevez

to rule on a motion for partial summary judgment filed on October 22, 2015, by real parties

in interest and defendants in the trial court, David Ellis and Andrew Gratz, and his request

for a trial setting. We will deny the petition.


       A trial court clearly abuses its discretion when it fails to rule within a reasonable

time on a properly-presented pretrial motion. Safety-Kleen Corp. v. Garcia, 945 S.W.2d

268, 269 (Tex. App.—San Antonio 1997, orig. proceeding). Once a motion is properly
filed and pending before a trial court, the act of considering and ruling on that motion is

ministerial, and mandamus may issue to compel the trial judge to act. In re Quiroz, No.

05-17-00742-CV, 2017 Tex. App. LEXIS 7423, at *2 (Tex. App.—Dallas Aug. 7, 2017,

orig. proceeding) (mem. op.) (citing Safety—Kleen Corp., 945 S.W.2d at 269). Before a

writ of mandamus will issue in such circumstances, the relator must establish that (1) the

trial court had a legal duty to perform a non-discretionary act, (2) performance was

demanded, and (3) the court refused to act. O’Connor v. First Court of Appeals, 837

S.W.2d 94, 97 (Tex. 1992) (orig. proceeding); In re Posey, No. 07-03-00518-CV, 2004

Tex. App. Lexis 695, at *2 (Tex. App.—Amarillo Jan. 22, 2004, orig. proceeding) (mem.

op.) (citing Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979)).


       This is Jackson’s second mandamus petition on this issue. He filed a previous

petition in June 2017.1 We denied relief in a July 21 opinion, finding Jackson did not show

that the defendants’ summary judgment motion or Jackson’s requests for a ruling on the

motion had been brought to Judge Estevez’s attention, and thus he had not shown Judge

Estevez had refused to rule on Ellis and Gratz’s motion for partial summary judgment. 2

The record accompanying Jackson’s current petition shows he has taken steps to insure

that Judge Estevez is aware of his requests. The current record includes a certified letter,

return receipt requested, sent by Jackson to Judge Estevez. By the correspondence

Jackson requested a ruling on Ellis and Gratz’s motion for partial summary judgment and



       1
      See In re Jackson, No. 07-17-00224-CV, 2017 Tex. App. LEXIS 6852 (Tex.
App.—Amarillo July 21, 2017, orig. proceeding) (per curiam, mem. op.).
       2
       Additional background facts may be gleaned from our July 21 opinion. We have
granted Jackson’s request, based on financial inability, to include in the present
mandamus record the record from 07-17-00224-CV. See TEX. R. APP. P. 2.

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a trial setting for the case. The return receipt or “green card” indicates a September 18,

2017 date of delivery. Jackson dated his petition October 11, 2017, and it was filed in

this Court on October 16.


       At our request, the real parties in interest Ellis and Gratz have filed a response to

Jackson’s petition. The response first asserts the petition should be denied because

Jackson has not submitted proof that his filings were brought to Judge Estevez’s

attention. We disagree with the assertion. At this point in the trial court proceedings, and

given our July 21 opinion and Jackson’s certified-mail correspondence, we consider it

beyond question that Judge Estevez is aware of real parties’ motion for partial summary

judgment and of Jackson’s requests for a ruling on the motion and for a trial setting.3


       Nonetheless, Jackson’s petition for mandamus must be denied. Jackson’s

argument here seems to be that Judge Estevez has a legal duty to consider and rule on

the motion for partial summary judgment, performance was requested by Jackson’s June

29 mandamus petition, this Court’s July 21 ruling, or his certified letter, and the absence

of Judge Estevez’s ruling by October 11 is tantamount to a refusal to rule. But a trial court

has a reasonable time to consider and rule on a motion. In re Chavez, 62 S.W.3d 225,

228 (Tex. App.—Amarillo 2001, orig. proceeding). A litigant is not entitled to a hearing at

whatever time he selects. In re Quiroz, 2017 Tex. App. LEXIS 7423, at *2 (citing In re


       3Real parties’ response argues Jackson has failed to file certified or sworn copies
of the material documents with his petition, as required by appellate rule 52.7. TEX. R.
APP. P. 52.7(a)(1). Review of the current mandamus record indicates counsel for Ellis
and Gratz may not have been served with the supplement to Jackson’s petition filed
October 17, 2017, which contains his unsworn declaration that an exhibit to his petition is
a true copy of his letter to Judge Estevez and another exhibit is the original green card
confirming the letter’s receipt. With this opinion, we are forwarding to counsel a copy of
Jackson’s supplement filed October 17.

                                             3
Chavez, 62 S.W.3d at 229). What constitutes a reasonable time depends on any number

of case-unique factors, which include not only the trial court’s actual knowledge of the

motion but “the state of the court’s docket, and the existence of other judicial and

administrative matters which must be addressed first.” In re Chavez, 62 S.W.3d at 228-

29. The trial court’s inherent power to control its own docket must also be considered.

Id. at 229 (“a trial court has great discretion over its docket”).


       Jackson, a Texas prison inmate, has asserted he risks losing contact with his

witnesses because of the passage of time. He has diligently pursued obtaining a ruling

on Ellis and Gratz’s motion for partial summary judgment. But his second mandamus

petition was filed only weeks after his notice to Judge Estevez. In the absence of proof

of other factors such as the status of Judge Estevez’s docket and the existence or not of

other judicial and administrative matters which Judge Estevez must first address, see In

re Chavez, 62 S.W.3d at 229, we will not say she has clearly abused her discretion by

failing to rule on the motion for partial summary judgment or set the case for trial by

October 11, 2017. Jackson’s petition for writ of mandamus is denied.


                                                           Per Curiam




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