                                   NO. 07-06-0032-CV

                                IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                JANUARY 25, 2006
                         ______________________________

                                IN RE BOBBY W. WILLARD,

                                                 Relator
                         _______________________________

              OPINION ON APPLICATION FOR WRIT OF MANDAMUS
                      _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Pending before this court is the application of Bobby W. Willard for a writ of

mandamus. He requests that we order the Honorable Bradley S. Underwood, district

judge, to “conduct[] a Hearing or Appoint[] Counsel in His DNA proceeding with attention

to the previous Perjury committed in the initial DNA Proceeding.” We deny the application

for the reasons which follow.

      First, rules of procedure obligate one seeking mandamus relief to accompany his

petition with an appendix. TEX . R. APP . P. 52.3(j). The latter must include, among other

things, a certified or sworn copy of the document showing the matter complained of. This

Willard failed to do. Here, the document showing the matter complained of would be the

motion for DNA testing or to appoint counsel. It did not accompany, either separately or

within an appendix, the petition for mandamus relief. And, that Willard may be acting pro
se does not relieve him of complying with the rules of procedure. Holt v. F.F. Enters., 990

S.W.2d 756, 759 (Tex. App.–Amarillo 1998, pet. denied).

        Next, nothing of record indicates that the motion purportedly filed below was brought

to the attention of the district court. Simply put, before mandamus relief may issue, the

petitioner must establish that the district court 1) had a legal duty to perform a

non-discretionary act, 2) was asked to perform the act, and 3) failed or refused to do it.

O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992); In re Chavez, 62

S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding). Given this, it is encumbent

upon Willard to illustrate that the district court received and was aware of his motion.1 This

is so because a court cannot be faulted for doing nothing when it is or was unaware of the

need to act. Here, the record simply indicates that Willard’s motion was mailed to the

district clerk. Whether the trial court was ever made aware of it is unknown. Lacking that

information, we cannot simply assume that the district court knew of its duty to act and

neglected to perform it. Thus, Willard has not fulfilled his burden to illustrate that the trial

court refused to act.

         Next, and assuming arguendo that a pleading is brought to the attention of a district

court, the latter has a duty to consider and act upon it. In re Bates, 65 S.W.3d 133, 134-35

(Tex. App.–Amarillo 2001, orig. proceeding); In re Ramirez, 994 S.W.2d 682, 683 (Tex.

App.–San Antonio 1998, orig. proceeding). This is so because the task of considering it

is ministerial. In re Bates, 65 S.W.3d at 134-35; Safety- Kleen Corp. v. Garcia, 945 S.W.2d


        1
         Filing something with the district clerk does not mean the trial co urt know s of it. No r is tha t clerk's
knowledge imputed to the trial court. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig.
proceeding). Thu s, W illard m ust prove that the trial court received notice of the p leading. Id. Me rely alleging
that so me thing was filed w ith or m ailed to the district clerk doe s not satisfy that requirem ent. Id.

                                                         2
268, 269 (Tex. App.–San Antonio 1997, orig. proceeding), quoting O'Donniley v. Golden,

860 S.W.2d at 269-70. However, the court has a reasonable time within which to act. In

re Bates, 65 S.W.3d at 135. And, whether that period lapsed is dependent upon the

circumstances of each case. Id. In other words, no bright line demarcates the boundaries

of a reasonable time period. Id. Many indicia are influential, not the least of which are the

trial court's actual knowledge of the motion, its overt refusal to act on same, the state of the

court's docket, and the existence of other judicial and administrative matters which must

be addressed first. Id. So too must the trial court's inherent power to control its own docket

be included in the mix. In re Bates, 65 S.W.3d at 135; see Ho v. University of Texas at

Arlington, 984 S. W.2d 672, 694-695 (Tex. App.–Amarillo 1998, pet. denied) (holding that

a court has the inherent authority to control its own docket).           Since that power is

discretionary, Hoggett v. Brown, 971 S.W.2d 472, 495 (Tex. App.–Houston [14th Dist.]

1997, pet. denied), we must be wary of interfering with its exercise without legitimate basis.

And, since the party requesting mandamus relief has the burden to provide us with a record

sufficient to establish his right to same, Walker v. Packer, 827 S.W.2d 833, 837 (Tex.

1992); In re Bates, 65 S.W.3d at 135, Willard had the obligation to provide us with a record

establishing that a properly filed motion has awaited disposition for an unreasonable length

of time. He has not done that.

       The record before us merely illustrates that Willard mailed his motion to the clerk in

October of 2005. Yet, no other evidence purporting to touch upon the indicia discussed in

the preceding paragraph appears of record. And, because we do not hold that the district

court's failure to act upon a motion about which it may have no knowledge constitutes

unreasonable delay per se, Willard again has not satisfied his burden of proof.

                                               3
      Accordingly, the application for writ of mandamus pending before this court is

denied.



                                             Brian Quinn
                                             Chief Justice




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