                                    NO. 07-07-0145-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                      APRIL 20, 2007

                           ______________________________


                             IN RE DONALD WAYNE SMITH,

                                                                 Relator

                          _______________________________

                Opinion on Original Proceeding for Writ of Mandamus

                          _______________________________

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

       Pending before this court is the application of Donald Wayne Smith for a writ of

mandamus. He requests that we order “Edward Self, . . .District Judge of Hale County

Texas” to “dispose of [Smith’s] litigation promptly, efficiently, and fairly.” According to his

application, Smith has filed with the trial court, “a motion for nunc pro tunc” on November

14, 2006. 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. In this

case, the document showing the matter complained of would be the “motion for nunc pro

tunc.” This he failed to do. Also lacking is compliance with other aspects of the same rule.
For instance, his application contains no identity of the parties and counsel, table of

contents, index of authorities, statement of the case, or statement of the issues presented.

Rule 52.3 requires one seeking extraordinary relief, such as a writ of mandamus, to include

those matters in his petition. And, that Smith 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).

         Second, 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 Smith 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 Smith’s motion was filed with the “242nd

District Court.” 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, Smith has not fulfilled his burden to illustrate that the trial

court refused to act.




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         Filing something with the district clerk doe s no t m ean the trial co urt know s of it. No r is that clerk’s
knowledge impute d to the trial court. In re Chavez, 62 S.W .3d 225, 228 (Tex. App.–Am arillo 2001, orig.
proceed ing). Thus, S m ith m ust prove that the trial court rece ived notice o f the pleading. Id. Merely alleging
that som ething was filed with or m ailed to the district clerk does not satisfy that requ irem ent. Id.

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       Third, 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

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). 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, Smith had the




                                             3
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 Smith purportedly filed his motion with

the 242nd District Court on November 14, 2006. 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, Smith again has not satisfied his

burden of proof.

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

denied.



                                                 Brian Quinn
                                                 Chief Justice




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