                                          NO. 07-09-0113-CV

                                    IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                 PANEL A

                                              JULY 8, 2009

                               ______________________________


                          IN RE HARVEY BRAMLETT, JR., RELATOR1

                              _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                      MEMORANDUM OPINION


        On April 6, 2009, Relator, Harvey Bramlett, Jr., proceeding pro se and in forma

pauperis, filed a Petition for Writ of Mandamus seeking to compel the Honorable Abe

Lopez, Respondent, to rule on certain matters pending in the 108th District Court of Potter

County. By Order of Abatement dated April 30, 2009, this Court took judicial notice of the

fact that Judge Lopez had retired and had been succeeded by the Honorable Douglas

Woodburn.        Per Rule 7(a) of the Texas Rules of Appellate Procedure, this Court



        1
        By his Am ended Petition for W rit of Mandam us, Bram lett has also listed Jason Blakeney as a relator.
However, a person who is not a licensed attorney is not perm itted to represent anyone other than him self.
See 7 Tex. Jur. 3d Attorneys At Law § 111 (2009). See also Magaha v. Holmes, 886 S.W .2d 447, 448
(Tex.App.–Houston [14th Dist.] 1994, no writ). Bram lett has not shown that he is qualified to represent
Blakeney; nor has Blakeney shown that he is qualified to represent Bram lett, thus, Blakeney will not be
considered a party to this proceeding.
substituted Judge Woodburn as Respondent and abated the mandamus proceeding for

sixty days to allow Relator to present his motions to Judge Woodburn.


       By letter dated June 15, 2009, Relator notified this Court that he had resubmitted

his “request made the subject of his Petition for Writ of mandamus” to the trial court on

May 11, 2009, but that “said judge ha[d] yet to issue a ruling . . . .” Relator did not include

the specifics of his request in his letter. On June 30, 2009, Relator filed his “AMENDED

PETITION FOR WRIT OF MANDAMUS” in compliance with Rule 52.3 seeking to compel

Judge Woodburn to rule on the motion pending in Cause No. 0970915-00-E, styled Harvey

Bramlett v. Texas Dept. Crim. Justice by which he seeks:


       C      to disqualify counsel;
       C      to strike pleadings;
       C      sanctions; and
       C      to hold the Attorney General in contempt.


A duplicate of the motion was included as an exhibit to Relator’s petition. Although it does

not bear a file stamp, it is dated February 19, 2009, and also reflects a resubmission date

of May 11, 2009. By his prayer for relief, Relator requests this Court order Judge

Woodburn to “Rule – and Grant the motion to disqualify . . . and such other and necessary

relief to which entitlement is obviously shown.”


       “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,


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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, a relator must (1) show that he has no adequate remedy at law to

redress the alleged harm and (2) the act sought to be compelled is ministerial and does

not involve a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist.

Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007); State ex rel. Rosenthal v.

Poe, 98 S.W.3d 194, 198 (Tex.Crim.App. 2003).             A relator must also demonstrate

entitlement to mandamus relief by showing (1) a legal duty to perform; (2) a demand for

performance; and (3) 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 upon the motion is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157,

158 (Tex. 1992). The trial court has, however, a reasonable time within which to perform

its ministerial duty. 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). Other factors are influential such

as the trial court’s actual knowledge of the motion, its overt refusal to act, the state of its

docket, and other judicial and administrative duties which must be addressed. In re

Villarreal, 96 S.W.3d 708, 711 (Tex.App.–Amarillo 2003, orig. proceeding).



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       The party requesting relief must provide a sufficient record to establish his

entitlement to mandamus relief. See Walker, 827 S.W.2d at 837. See also In re Bates,

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

that the motion of which Relator complains was presented to the trial court and that it

refused to act. See generally In re Villareal, 96 S.W.3d 708, 710 n.2 (Tex.App.–Amarillo

2003, orig. proceeding) (filing something with the district clerk does not demonstrate that

a motion was presented to the trial court). See also In re Chavez, 62 S.W.3d 225, 228

(Tex.App–Amarillo 2001, orig. proceeding). Therefore, “[relator] must prove that the trial

court received notice of the pleading . . . . Merely alleging that something was filed with

or mailed to the district clerk does not satisfy that requirement.” In re Metoyer, No. 07-07-

0506-CR, 2008 WL 123575, *1 n.2, 2008 Tex. App. Lexis 243, *4 n.2, (Tex.App.–Amarillo

January 14, 2008, original proceeding) (citations omitted) (not designated for publication).


       According to Relator’s correspondence of June 15, 2009, and his amended petition

filed on June 30, 2009, he resubmitted his motion to the trial court on May 11, 2009.

Assuming, arguendo, that the motion was brought to the attention of the trial court on that

date, we decline to hold that two months constitutes an unreasonable delay in which to

perform a ministerial duty. We conclude Relator has not satisfied his burden to provide a

sufficient record demonstrating that a properly filed motion has awaited disposition for an

unreasonable length of time nor that the trial court has refused to perform a ministerial

duty. The record does not show an abuse of discretion or the violation of a duty imposed

by law.

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       Additionally, we note that Relator seeks to compel Judge Woodburn to “grant” his

motion to disqualify. The trial court, however, has no ministerial duty to “rule a certain way

on that motion.” State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d

at 210.   Deciding how to rule is not a ministerial act and is beyond the scope of

extraordinary relief. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex.Crim.App.

1987). As such, we have repeatedly held that we may not direct a trial court’s decision on

a matter pending before it. See, e.g., In re Duffy, No. 07-09-0090-CV, 2009 WL 1066088,

at *2, 2009 Tex. App. Lexis 2738, at *4-5 (Tex.App.–Amarillo Apr. 20, 2009, original

proceeding) (mem. op.) (citing cases). Accord In re Blakeney, 254 S.W.3d 659, 661

(Tex.App.–Texarkana 2008, orig. proceeding) (“[w]hile we have jurisdiction to direct the trial

court to make a decision, we may not tell the court what that decision should be.”) This

rule is applicable to Relator’s request.


       For the reasons we have stated, Relator’s petition for writ of mandamus is denied.




                                                  Patrick A. Pirtle
                                                      Justice




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