                                    NO. 07-07-0165-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL B

                                    MAY 7, 2007
                          ______________________________


                                 In re RAY GUTIERREZ,

                                                         Relator

                          _______________________________


       Memorandum Opinion on Original Proceeding for Writ of Mandamus
                   _______________________________


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

       Pending before this court is the application of Ray Gutierrez for a writ of mandamus.

He requests that we “issue a WRIT OF MANDAMUS . . . compelling the [154th Judicial

District Court of Lamb County] to act in giving consideration to rule upon his MOTIONS

FOR A TRIAL RECORDS [sic].” We deny the application for the reasons which follow.

       First, Rule 52 of the appellate rules requires the application for extraordinary relief

to include a 1) section identifying the parties and counsel, 2) table of contents, 3) index of

authorities, 4) statement of the case, and 5) statement of the issues presented. TEX . R.

APP. P. 52.3. Each is missing from Gutierrez’ application, and that he may be acting pro

se does not relieve him of complying with those rules. Holt v. F.F. Enters., 990 S.W.2d

756, 759 (Tex. App.–Amarillo 1998, pet. denied).
        Second, nothing of record indicates that the motions purportedly filed below were

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 Gutierrez 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 Gutierrez’ motion was filed with

the “154th Judicial District Court of Lamb County.” 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, Gutierrez has not fulfilled

his burden to illustrate that the trial court refused to act.

        Third, and assuming arguendo that the pleading was 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 268, 269 (Tex. App.–San Antonio 1997, orig. proceeding), quoting

O’Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex. App.–Tyler 1993, orig. proceeding).


        1
          Filing som ething with the district clerk does not m ean the trial court knows of it. Nor is that clerk’s
knowledge im puted to the trial court. In re Chavez, 62 S.W .3d 225, 228 (Tex. App.–Am arillo 2001, orig.
proceeding). Thus, Gutierrez m ust prove that the trial court received notice of the pleading. Id. Merely
alleging that som ething was filed with or m ailed to the district clerk does not satisfy that requirem ent. Id.

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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, Gutierrez 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 Gutierrez purportedly filed his motion

with the 154th Judicial District Court of Lamb County. 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




                                              3
may have no knowledge constitutes unreasonable delay per se, Gutierrez failed to satisfy

his burden of proof.

       Next, Gutierrez seeks the record in effort to determine whether grounds exist to

attack his 2003 conviction via habeas corpus under art. 11.07 of the Code of Criminal

Procedure. Attempting to prosecute such a writ evinces that he exhausted his direct

appeals. See Ex parte Brown, 662 S.W.2d 3, 4 (Tex. Crim. App. 1983) (stating that one

must first exhaust his direct appeals before invoking art. 11.07). His direct appeals being

exhausted, he is not entitled to a free record. In re McCarty, No. 08-05-0355-CR, 2005

Tex. App. LEXIS 10197 (Tex. App.–El Paso December 8, 2005, orig. proceeding); In re

Trevino, 79 S.W.3d 794, 795-96 (Tex. App.–Corpus Christi 2002, orig. proceeding). Thus,

the relief Gutierrez ultimately seeks from the trial court is not permitted by law, without a

showing of exceptional circumstances, In re Trevino, supra, and we have been cited to no

such circumstances.

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

denied.



                                                 Brian Quinn
                                                 Chief Justice




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