      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00075-CV




                                     In re Patrick Earl Conely




                        ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                             MEMORANDUM OPINION


                Patrick Earl Conely is an inmate in the McConnell Unit of the Texas Department of

Criminal Justice-Correctional Institutions Division. He has petitioned this Court for a writ of

mandamus to compel the judge of the 353rd District Court of Travis County, to consider and rule

on motions pending in cause number D-1-GN-07-001319, Patrick Earl Conely v. Texas Board

of Criminal Justice, et al. We are not told the nature of this lawsuit, in which Conely is

representing himself.

                Attached as an exhibit to Conely’s mandamus petition is a copy of a computer

print-out, apparently prepared by the district clerk’s office, reflecting the activity in this cause. The

plaintiff’s original petition and supporting documents were filed on May 3, 2007, followed by an

amended plaintiff’s petition on January 22, 2008. On June 4, 2008, Conely filed a motion

for sanctions or order compelling discovery, and on June 11, 2008, he filed a motion for
appointment of counsel. Insofar as the record reflects, the district court has not ruled on any of these

pending motions.1

               Whether to consider and rule on a motion is not a matter of the trial court’s discretion.

Rather, when a motion is properly filed and pending, the act of considering it is ministerial. Ex parte

Bates, 65 S.W.3d 133, 134-35 (Tex. App.—Amarillo 2001, orig. proceeding). The court has a

reasonable time within which to perform this ministerial duty, and whether this period has lapsed

is dependent on the circumstances of each case. Id. at 135. Among the relevant factors 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 matters that must be addressed first. Id.

               The document prepared by the district clerk reflects that the trial court is aware of the

pending motions and has taken some steps to act on them. A notice of hearing on plaintiff’s pending

motions was sent on August 4, 2008. On that same date, Conely moved for a bench warrant or to

appear by video conferencing. On August 28, 2008, Conely filed a “motion for court to rule on

pending motions.” Notice of a telephone conference was given on October 8, 2008. We infer that

no hearing or conference was held, but the record does not reflect the reason or reasons why

Conely’s motions have not been acted on by the trial court.

               On the record before us, Conely has not met his burden of demonstrating an

entitlement to mandamus relief. The petition for writ of mandamus is denied without prejudice to

Conely’s right to file another petition supported by evidence of the steps he has taken to obtain a


  1
    On June 7, 2007, the individual defendants filed their original answer and moved for a transfer
of venue to Bee County. On July 2, 2008, the defendants moved to dismiss the cause pursuant to
chapter fourteen of the Texas Civil Practice & Remedies Code. These motions also remain pending.

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ruling on his pending motions and of the responses he has received from those acting on the trial

court’s behalf.



                                            __________________________________________

                                            J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson

Filed: July 1, 2009




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