                                        NO. 12-19-00244-CV
                               IN THE COURT OF APPEALS
                   TWELFTH COURT OF APPEALS DISTRICT
                                            TYLER, TEXAS


 IN RE:                                                   §
 MICHAEL ALLYN KENNEDY,                                   §       ORIGINAL PROCEEDING
 RELATOR                                                  §

                                        MEMORANDUM OPINION
         Relator, Michael Allyn Kennedy, filed this original proceeding to seek a writ of mandamus
compelling Respondent to issue a summons and complaint in his lawsuit against Real Parties in
Interest, Anderson County, Frederick Kennedy, and the City of Palestine, which he states was filed
on April 3, 2019. 1 According to Relator, Respondent refuses to act on his lawsuit or “bring the
suit to the court.” Relator states that he filed three motions for issuance of a summons and
complaint, filed in April and May, but Respondent has not ruled on the motions. He also appears
to complain that no cause number has been issued for his lawsuit. 2
         We first note that Relator’s lawsuit does have an assigned cause number, DCCV18-592-
369. Second, to obtain a writ of mandamus compelling a trial court to consider and rule on a
motion, the relator must show that the trial court (1) had a legal duty to perform a nondiscretionary
act, (2) was asked to perform the act, and (3) failed or refused to do so. In re Molina, 94 S.W.3d
885, 886 (Tex. App.–San Antonio 2003, orig. proceeding). Generally, a trial court has a
nondiscretionary duty to consider and rule on a motion within a reasonable time. In re Thomas,
No. 12–05–00261–CV, 2005 WL 2155244, at *1 (Tex. App.–Tyler Sept. 7, 2005, orig.


         1
             Respondent is the Honorable C. Michael Davis, Judge of the 369th District Court in Anderson County,
Texas.
         2
          Relator also appears to complain of some action or inaction by the Anderson County District Clerk.
However, this Court lacks mandamus jurisdiction over the District Clerk in this case. See In re McCreary, No. 12-
17-00292-CR, 2017 WL 4321170 (Tex. App.—Tyler Sept. 29, 2017, orig. proceeding) (mem. op., not designated
for publication).
proceeding) (mem. op.). However, a trial court cannot be expected to consider a motion not called
to its attention. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig.
proceeding). It is incumbent upon the relator to establish that the motion has been called to the
trial court’s attention. See id.
        In this case, Relator provides no evidence demonstrating that Respondent was afforded or
had notice of Relator’s motions. Nor does Relator present evidence, such as a docket sheet,
demonstrating that Respondent has not ruled on his motions. See In re Creag, No. 12-17-00191-
CV, 2017 WL 2665987, at *1 (Tex. App.—Tyler June 21, 2017, orig. proceeding) (mem. op.); see
also In re Vasquez, No. 05-15-00592-CV, 2015 WL 2375504, at *1 (Tex. App.—Dallas May 18,
2015, orig. proceeding) (mem. op.) (denying petition that failed to include a docket sheet or other
form or proof that trial court had not ruled on motion).
        Moreover, by his own admission, Relator recently filed his lawsuit in April 2019. “Trial
courts are generally granted considerable discretion when it comes to managing their dockets.” In
re Conner, 458 S.W.3d 532, 534 (Tex. 2015). Whether the trial court has had a reasonable time
within which to rule depends on the circumstances of each case, and “no bright-line demarcates
the boundaries of a reasonable time period.” Chavez, 62 S.W.3d at 228. “Its scope is dependent
upon a myriad of criteria, not the least of which is 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. at 228-29. Relator presents no
evidence of the number of other cases, motions, or issues pending on Respondent’s docket, those
which have pended on the docket longer than the present case, those pending on the docket that
lawfully may be entitled to preferential settings, or Respondent’s schedule. See id., 62 S.W.3d at
229. Absent such evidence, we cannot say that a reasonable time for ruling has passed with respect
to Relator’s motions. See id. at 228-29. Accordingly, we conclude that Relator has not established
his entitlement to mandamus relief.


                                            DISPOSITION
        Because Relator has not shown that he is entitled to mandamus relief, we deny the petition
for writ of mandamus. All pending motions are overruled as moot.




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                                                               JAMES T. WORTHEN
                                                                  Chief Justice




Opinion delivered July 10, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)



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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT


                                             JULY 10, 2019

                                        NO. 12-19-00244-CV



                                MICHAEL ALLYN KENNEDY,
                                         Relator
                                           V.

                                   HON. C. MICHAEL DAVIS,
                                           Respondent


                                       ORIGINAL PROCEEDING

               ON THIS DAY came to be heard the petition for writ of mandamus filed by
Michael Allyn Kennedy; who is the relator in appellate cause number 12-19-00244-CV and the
plaintiff in trial court cause number DCCV18-592-369, pending on the docket of the 369th Judicial
District Court of Anderson County, Texas. Said petition for writ of mandamus having been filed
herein on July 1, 2019, and the same having been duly considered, because it is the opinion of this
Court that the writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED
that the said petition for writ of mandamus be, and the same is, hereby denied.
                   James T. Worthen, Chief Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.


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