                                   NO. 07-06-0324-CV

                             IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                  SEPTEMBER 6, 2006

                          ______________________________


                         IN RE ERASMO GONZALES, RELATOR

                        _________________________________


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


                               MEMORANDUM OPINION


       Relator Erasmo Gonzales, an inmate proceeding pro se and informa pauperis, seeks

a writ of mandamus to compel the Honorable Ron Enns, Judge of the 69th District Court

of Dallam County, to hold an evidentiary hearing on his motion for judicial notice. We deny

the requested relief.


       Mandamus is an extraordinary remedy available only in limited circumstances

involving manifest and urgent necessity and not for grievances that may be addressed by

other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Relator must

demonstrate a clear abuse of discretion or the violation of a duty imposed by law when

there is no other adequate remedy at law. See Republican Party of Texas v. Dietz, 940
S.W.2d 86, 88 (Tex. 1997). Additionally, relator must satisfy three requirements:, to-wit:

(1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. Stoner

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


       When a motion is properly pending before a trial court, the act of considering and

ruling upon it is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.

1992). However the trial court has a reasonable time within which to perform that

ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San

Antonio 1997, orig. proceeding). Whether a reasonable period of time has lapsed is

dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426,

(Tex.App.–Houston [1st Dist.] 1992, orig. proceeding).


       Included with relator’s request for mandamus relief is a copy of a motion for judicial

notice filed May 22, 2006, by which he requests an evidentiary hearing on whether he

received ineffective assistance of counsel. Rule 201(d) of the Texas Rules of Evidence

provides that a court “shall take judicial notice if requested by a party and supplied with the

necessary information.” Subparagraph (e) provides that a party is entitled to an opportunity

to be heard as to the propriety of the request.1




       1
        Matters that may be judicially noticed include adjudicative facts, legislative facts,
and law. See O’Quinn v. Hall, 77 S.W.3d 438, 447 (Tex.App.–Corpus Christi 2002, no
pet.). One method of challenging a claim of ineffective assistance of counsel is by
collateral attack. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.Cr.App. 1999).

                                              2
      Appellant’s motion for judicial notice has been pending in the trial court for three

months. We decline to hold that period of time constitutes an unreasonable delay.

Additionally, relator has not shown that he demanded performance nor that the trial court

refused to act. Stoner, 586 S.W.2d at 846. He has also failed to show he has no other

adequate remedy at law to present his complaint.


      Accordingly, relator’s request for mandamus relief is denied.



                                         Don H. Reavis
                                           Justice




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