                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-13-00342-CV


                   IN RE RICHARD JAMES JOHNSON, RELATOR

                              ORIGINAL PROCEEDING

                                  October 28, 2013

                 ON PETITION FOR WRIT OF MANDAMUS
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Relator, Richard James Johnson, has filed a petition for writ of mandamus

requesting this Court to order the trial court to ―serve defendants, allow [relator] to

appear at [a] hearing [on defendant’s motion to dismiss], and rule on the [relator’s]

motions." We deny the petition.

      First, Texas Rule of Appellate Procedure 52.3 identifies the requirements for a

petition for writ of mandamus filed in this Court. Rule 52.3(k)(1)(A) provides that the

appendix to a petition for writ of mandamus must contain a certified or sworn copy of

any order complained of or any other document showing the matter complained of.

Johnson has appended only an unsworn and non-certified copy of a motion for a ―bench

warrant or for permission to conduct hearing by telephone conference or other means.‖
Similarly, Johnson neglected to certify that he reviewed the petition and concluded that

every factual statement contained in it is supported by competent evidence included in

the appendix. Such is required by Texas Rule of Appellate Procedure 52.3(j).

        Also lacking is compliance with other aspects of Rule 52.                       For instance,

Johnson's 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 Johnson 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).1

        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 Johnson to illustrate that the district court received and was aware of

his motion. This is so because a court cannot be faulted for doing nothing when it is or

was unaware of the need to act. Additionally, filing something with the district clerk

does not mean the trial court knows of it, nor is the clerk’s knowledge imputed to the

trial court.    In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig.




        1
          Regarding Johnson’s complaint about the court failing to ―issue service,‖ we are not told the
nature of the service required. If it concerns the original petition, apparently the defendants have been
served since Johnson represents that they filed a motion to dismiss.

                                                   2
proceeding). Thus, Johnson must prove that the trial court received notice of the

pleading. Id.

       Here, the record simply indicates that Johnson’s motion was served on Harold J.

Liller with the Attorney General’s office by mail and there is no indication it was ever

filed with the trial court or the district clerk. 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, Johnson has not

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

       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.


                                                 3
App.—Amarillo 1998, pet. denied) (holding that a court has the inherent authority to

control its own docket). Since the latter 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, Johnson 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 Johnson mailed his motion to the

attorney general on October 7, 2013. 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, Johnson again has not satisfied

his burden of proof.

      Finally, because Johnson requests that we ―mandate‖ the trial court to ―allow him

to appear at the hearing,‖ he is asking that we mandate the trial court to rule a certain

way. That we cannot do. A district court may be compelled to consider and rule on a

pending motion presented to the court. See Simon v. Levario, 306 S.W.3d 318, 321

(Tex. Crim. App. 2009). Mandamus relief, however, will not issue to compel the court to

rule in a particular way on a pending motion. Id.; White v. Reiter, 640 S.W.2d 586, 593-

94 (Tex Crim. App. 1982).

      For the foregoing reasons, Johnson’s petition for writ of mandamus is denied.

                                                       Per Curiam

                                            4
