                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-14-00420-CV


                            IN RE JOSHUA EPPS, RELATOR

        OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

                                    December 31, 2014

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

       Pending before the court is relator’s petition for writ of mandamus.         Relator

requests that this court issue a writ of mandamus “directing the Honorable Jim Bob

Darnell to vacate his order of February 18, 2014 in Cause 2013-508,395. . . [and, in the

alternative] the Court should . . . direct the district court to rule on the pending motions

in Cause 2013-508,395, promptly set this matter for trial, and grant the other relief

sought herein.” Through two issues, relator contends that the trial court 1) abused its

discretion in entering the interlocutory order granting a bill of review and 2) failed to

perform the ministerial act of ruling on motions and setting the cause for trial. For the

following reasons, we deny the petition.
       Background

       On April 29, 2013, real party-in-interest, Melissa Jimenez (Jimenez) had her

parental rights terminated to the minor child, R.S.E., per her affidavit relinquishing her

interest in the child.   Via a separate proceeding, Adoption Covenant (an adoption

agency) unsuccessfully sought to terminate Epp’s parental rights to the child.

Thereafter, the trial court appointed Epps as sole managing conservator on July 15,

2013, via a third and independent proceeding that he commenced. Adoption Covenant

had served as the child’s managing conservator until that time.

       On September 4, 2013, Jimenez filed an original petition for bill of review

requesting that the judgment or final order in the termination proceeding be set aside.

Adoption Covenant initially opposed the petition but then filed its own “counter-petition”

for bill of review also requesting that the decree be nullified. The trial court, via written

order, denied the bill of Jimenez but granted that of Covenant on February 18, 2014.

That is, it specified that: “[t]he relief for a Bill of Review as requested by the Counter-

Petitioner ADOPTION COVENANT be GRANTED and that the April 29, 2013 Order of

Termination be set aside and that a new trial be granted.” (Emphasis in original). The

order made no mention of Epps’ conservatorship. Subsequently, Adoption Covenant

non-suited its case against Jimenez.

       On March 12, 2014, Jimenez petitioned to modify the parent-child relationship,

and the trial court heard the same on September 16th and 17th of 2014. Thereafter, it

orally pronounced temporary orders through which Jimenez was granted visitation to

the child beginning on September 19, 2014. So too was she appointed joint managing

conservator of the child and given the exclusive right to make educational decisions for



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the child over whom she had previously relinquished her parental rights. The temporary

orders were memorialized in written form on October 17, 2014. In October of 2014,

Epps petitioned for a writ of mandamus seeking to have the temporary orders vacated.

We denied the petition.              On December 5, 2014, he filed the pending request for

mandamus relief challenging the February 18th order granting the bill of review.

          Analysis

          Issue One—Bill of Review

          For purposes of this matter, we assume arguendo that mandamus lies to review

a bill of review. Compare In re National Unity Ins. Co, 963 S.W.2d 876, 877 (Tex.

App.—San Antonio 1998, orig. proceeding) (stating that “[a]n erroneously granted bill of

review is effectively a void order granting a new trial and is an abuse of discretion that

affords no adequate remedy at law”) with Texas Mex. R. Co. v. Hunter, 726 S.W.2d

616, 618 (Tex. App.—Corpus Christi 1987, orig. proceeding) (stating that the remedy is

by “appeal from the entire reinstated cause, when that judgment becomes appealable”).

We next reiterate that the act or event spawning Epp’s current petition (i.e., the

February 2014 order granting the bill of review) was the same as that from which arose

his complaints encompassed by his October 2014 entreaty to this court.1 Given this,

one could logically conclude that the grounds urged in his current pleading were

available when he filed his prior petition. Yet, he waited approximately ten months from

the execution of the order in question to file his second petition attacking its legitimacy.

          A writ of mandamus is an extraordinary remedy issuing at the discretion of the

court.        Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig.


          1
              The October petition involved the issuance of temporary orders due to the granting of the bill of
review.

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proceeding); In re Pendragon Trans. LLC, 423 S.W.3d 537, 540 (Tex. App.—Dallas

2014) (orig. proceeding). Though not an equitable remedy, its issuance nevertheless is

largely controlled by equitable principles. In re Pendragon Trans. LLC, 423 S.W.3d at

540. One such principle dictates that equity aids the diligent, not those who sleep on

their rights. Id. Indeed, unjustified delay in seeking such relief may result in its loss. Id.

As noted in In re Int’l Profit Assocs., the passing of four months may constitute such a

fatal delay.   In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009 (orig.

proceeding), citing Rivercenter Assocs. v. Rivera, 858 S.W.2d 366 (Tex. 1993) (orig.

proceeding); see also International Awards v. Medina, 900 S.W.2d 934, 935-36 (Tex.

App.—Amarillo 1995) (orig. proceeding) (holding similarly). The ten-month delay at bar

far exceeds the four-month period mentioned in Rivercenter and International Awards.

Moreover, we were not provided with an explanation as to why it occurred or why the

grounds now urged against allowing the February 2014 order to stand were omitted

from Epp’s first petition for a writ of mandamus. Consequently, we hold that he waived

his opportunity to review that order via mandamus.

       Issue Two—Motions and Setting the Matter for Trial

       Epps also contends that “mandamus relief is warranted in order to compel the

district court to take timely action in Cause 2013-508,395, by ruling on motions and

setting the case for jury trial.” Allegedly, he “(1) filed objections to the February 18

order, (2) filed a motion to clarify the order or alternative motion for new trial, and (3)

requested a jury trial, but the district court has taken no action on any of these

requests.”




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        A trial court has a ministerial duty to consider and rule on motions properly filed

and pending before the court, and mandamus may issue to compel the judge to

act.   Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio

1997, orig. proceeding) (citing O’Donniley v. Golden , 860 S.W.2d 267, 269-70 (Tex.

App.—Tyler 1993, orig. proceeding). However, the trial court is afforded a reasonable

time in which to perform this ministerial duty. Barnes v. State, 832 S.W.2d 424, 426

(Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). To establish entitlement to

mandamus relief for a trial court’s failure to act, the relator must establish that the trial

court had a legal duty to perform a non-discretionary act, was asked to perform the act,

and failed or refused to do so within a reasonable time. In re Chavez, 62 S.W.3d 225,

228 (Tex. App.—Amarillo 2001, orig. proceeding).

        Epps fails to direct us to where he brought the motions in question to the

attention of the trial court or otherwise notified the trial court of the need to rule upon

them. It is not enough to simply file them with the district clerk, for the knowledge of the

latter is not imputed to the trial judge. Id.       And, unless it is shown that the trial court

was made aware of the need to act, we cannot say it failed to act. And, the latter is a

condition to obtaining relief via mandamus. In re Smith, 279 S.W.3d 714, 715-16 (Tex.

App.—Amarillo 2007, orig. proceeding).

        And even if we were to assume arguendo that the motion was brought to the

attention of the district court, the latter nevertheless has a reasonable time to act upon

it.    Ex parte Bates, 65 S.W.3d 133, 134-35 (Tex. App.—Amarillo 2001, orig.

proceeding). And, whether such a period lapsed is dependent upon the circumstances

of each case.     Id.   In other words, no bright line demarcates the boundaries of a



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reasonable time period. Id. Many indicia are influential, not the least of which are 1) the

trial court’s actual knowledge of the motion, 2) its overt refusal to act on same, 3) the

state of the court’s docket, and 4) the existence of other judicial and administrative

matters which must be addressed first. Id. at 135. So too must the trial court’s inherent

power to control its own docket be included in the mix. Id.; see also Ho v. University of

Texas at Arlington, 984 S.W.2d 672, 693-94 (Tex. App.—Amarillo 1998, pet. denied)

(holding that a court has the inherent authority to control its own docket). And, 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.

       We finally note 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) (orig. proceeding); Ex parte Bates, 65 S.W.3d at 135. So, Epps

had the obligation to provide us with a record establishing that a properly filed motion

has awaited disposition for an unreasonable length of time. But, he has not done that.

Instead, the record merely illustrates that his motion was filed on September 16, 2014.

And, because we do not hold that the district court’s failure to act within three months

upon a motion about which it may have no knowledge constitutes unreasonable delay

per se, Epps again has not satisfied his burden of proof.

       As for the matter of convening trial, that said about acting upon a motion applies

with equal force to setting a matter for trial. A trial court generally has a reasonable time

to do so, and what is reasonable is not determined by what a party desiring a trial date

considers reasonable. Again, such circumstances as the state of the court’s docket, the



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existence of other judicial and administrative matters which take precedence, and its

inherent power to control its own docket should be included in the mix. Epps provided

us with no evidence illustrating the status of the trial court’s docket, the number of cases

that pend on it, or the number if any that take precedence of the parent/child dispute

that pends for adjudication. Nor can we say that failing to try a cause within ten months

is unreasonable per se. So, it was incumbent upon Epps to establish the requisite

indicia upon which we could say the delay was excessive, and he did not.

       However, to the extent the record indicates that the trial court at bar has not

convened a trial because it believes that granting the bill of review constituted a final

judgment, it is mistaken. The order entered by the trial court declared that: “The relief

for a Bill of Review as requested by the Counter-Petitioner ADOPTION COVENANT be

GRANTED and that the April 29, 2013 Order of Termination be set aside and that a new

trial [emphasis added] be granted.”      By the trial court setting aside the judgment and

granting a new trial, it did not finally adjudicate the merits of the underlying dispute; they

remain pending for final disposition. See Hoa v. Dang, No. 01-13-00938-CV, 2014 Tex.

App. LEXIS 1049, at *2 (Tex. App.—Houston [1st Dist.] January 30, 2014, pet. denied)

(mem. op.) (holding that because the order granting the bill of review did not dispose of

the merits but rather granted a new trial, it is not final but interlocutory); see also Kiefer

v. Touris, 197 S.W.3d 300, 302 (Tex. 2006) (stating that a bill of review that sets aside a

prior judgment without disposing of all the issues of the case on the merits is

interlocutory and not a final judgment). Other actions may have arisen since the bill of




                                              7
review was granted that finalized the proceeding, but the February 2014 order itself did

not end it.2

        For the reasons stated above, we deny the current petition for a writ of

mandamus. The clerk of this court is directed to serve a copy of this opinion and

accompanying judgment on each party, their counsel of record, and the trial court via a

method establishing its receipt.



                                                                    Brian Quinn
                                                                    Chief Justice




        2
           Indeed, the record indicates that Adoption Covenant non-suited its effort to terminate the
parental rights of Jimenez after the trial court ordered a new trial (via bill of review) in the cause. Epps
was not a party to that action. So too did Adoption Covenant and Jimenez file notices of non-suit against
Epps in the bill of review proceeding. We opt not to address whether anything remains pending given
those efforts at non-suit. However, temporary orders in favor of Jimenez were entered by the trial court
on October 17, 2014, in the cause non-suited by Adoption Covenant. In executing them, the trial court
stated that “[t]hese Temporary Orders shall continue in force until the signing of the final order or until
further order of this Court.” (Emphasis added). That verbiage certainly suggests that something remains
pending for final adjudication. It may be in the best interests of the child involved for the parents and trial
court to meet and discuss what, if anything, that something is.

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