                                    NO. 07-06-0446-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                   DECEMBER 20, 2006

                           ______________________________

                        IN RE RICHARD LEE GLENN, RELATOR
                          _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                       ON PETITION FOR WRIT OF MANDAMUS


       Relator Richard Lee Glenn, proceeding pro se, seeks a writ of mandamus directing

the Honorable John Board, Judge of the 181st District Court of Potter County, to hold a

hearing and rule on his application for writ of mandamus seeking to compel Caroline

Woodburn, Potter County District Clerk, to issue citation in a civil case. We will deny

relator's petition.


       Relator alleges he filed a civil action in the 181st District Court on December 12,

2005, and that he sought issuance of citation through the district clerk’s office. Relator

alleges that he has made requests of the district clerk’s office by letter on April 17th, June

7th, and August 9th of 2006. He further alleges that he has received no response from the

district clerk’s office and that no citations have been issued from said office.   No certified

or sworn copies of the application were included with the petition for writ of mandamus as
required by Rule 52.3(j)(1)(A) of the Texas Rules of Appellate Procedure.             Relator

maintains the trial court abused its discretion by refusing to hear and rule on his motions.

He also asserts he has no adequate remedy by law.


       "Mandamus issues only to correct a clear abuse of discretion or the violation of a

duty imposed by law when there is no other adequate remedy by law." Walker v. Packer,

827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). To show entitlement to

mandamus relief in circumstances such as those presented by relator's petition, he must

satisfy three elements: first, a legal duty to perform a non-discretionary act; second, a

demand for performance; and third, refusal of that demand. See 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 on the motion is a ministerial act. See Eli Lilly and Co. v.

Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding). However, the trial court has

a reasonable time within which to perform that ministerial duty. See 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).


       Additionally, the party seeking relief has the burden to provide a sufficient record to

establish entitlement to mandamus relief. Walker, 827 S.W.2d at 837. See also Ex parte

Bates, 65 S.W.3d 133, 135 (Tex.App.–Amarillo 2001) (orig. proceeding). The record must

show the motion was presented to the trial court and it refused to act. In re Villarreal, 96

                                              2
S.W.3d 708, 710 n.2 (Tex.App.–Amarillo 2003) (orig. proceeding). Relator asserts that on

September 13, 2006, he mailed his application to the trial court judge seeking the court to

compel the district clerk to issue citations. However, he does not sufficiently demonstrate

that his application was received by the trial judge, filed with the district clerk’s office, and

that the district court has refused to act on it. We must conclude relator has not satisfied

his burden to provide a sufficient record demonstrating that a properly pending motion has

awaited disposition for an unreasonable length of time or that the trial court has refused to

perform a ministerial act.


       Moreover, as noted, relator's petition for writ of mandamus does not substantially

comply with the requirements of Rule 52.3 of the Texas Rules of Appellate Procedure. See

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) (pro se litigants must

comply with the same applicable procedural rules as counsel-represented litigants). For

these reasons, relator's petition for writ of mandamus is denied.




                                            Mackey K. Hancock
                                                Justice




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