                                    NO. 07-04-0239-CV

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                    APRIL 20, 2004
                           ______________________________

                      IN RE: JUDY LAWRENCE, as trustee of the
                  A. M. & J., COLDWATER, and RED RIVER TRUSTS,

                                                 Relator
                          _______________________________

                 ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
                       _______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

       Pending before this court is the petition of Judy Lawrence, as trustee of the A. M.

& J., Coldwater, and Red River Trusts for a writ of mandamus. She requests that we 1)

issue an order requiring Ron Enns, district judge, 69th Judicial District, Dallam County, (trial

court) to act upon her “Complaint for Emergency Preliminary Injunction, Permanent

Injunction Relief, and ___ Damages ___” and other requests for emergency relief and 2)

find “that [she] has a right to be treated respectfully by the Court, and therefore the Court

has a moral duty of common courtesy to timely rule on filed paperwork.” This relief is

purportedly due her because “this case has been unreasonably delayed without

explanation” and “some judges are openly hostile towards people who represent

themselves, as demonstrated with the current case.” For the reasons that follow, we deny

the petition.
       Irrespective of whether a litigant has an attorney or acts pro se, a trial court’s

obligation to consider and rule upon a motion is not a discretionary act. Ex parte Bates,

65 S.W.3d 133, 134 (Tex. App.–Amarillo 2001, orig. proceeding); In re Ramirez, 994

S.W.2d 682, 683 (Tex. App.–San Antonio 1998, orig. proceeding). Indeed, when a

pleading or motion is properly filed and pending before a trial court, the act of considering

and resolving it is ministerial and subject to mandamus relief. Ex parte 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). Nonetheless, the duty to act is not dependent upon

a schedule set by the movant or parties for the trial court has a reasonable time within

which to perform it. Id.; Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.–Houston [1st

Dist.] 1992, orig. proceeding).

       Additionally, no bright-line demarcates the boundaries of a reasonable time period.

Bates, 65 S.W.3d at 135. Its scope is dependent upon a myriad of factors, not the least

of which is the trial court’s actual knowledge of the motion or request, 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 factored into the mix. Id.; see Ho v. University

of Texas at Arlington, 984 S.W.2d 672, 694-95 (Tex. App.–Amarillo 1998, pet. denied)

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

it is the burden of the party requesting mandamus relief to prove his entitlement to same,

Bates, 65 S.W.3d at 135, Lawrence had the obligation to provide us with evidence of the



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foregoing indicia (or the like) against which we could test the reasonableness of the trial

court’s supposed delay.

       Here, the appendix attached to the request for mandamus relief illustrates that

Lawrence filed with the district clerk for Dallam County her “Complaint for Emergency

Preliminary Injunction, Permanent Injunction Relief, and ___ Damages ___” on January

20, 2004. So too did she file with the same clerk, on February 17, 2004, and March 22,

2004, two documents entitled “Application for an Emergency Temporary Restraining Order

in Affidavit Form.”1 And, according to her, none have been addressed by the trial court.

Yet, nothing of record illustrates that the existence of the applications or complaint has

been made known to the trial court. That the district clerk may be aware of them is not

enough. Because we know of no rule that imputes that clerk’s knowledge to the trial court,

it is incumbent upon the relator to illustrate that the clerk informed the court of the matter

or that the court otherwise obtained notice of it. In re Chavez, 62 S.W.3d 225, 228 (Tex.

App.–Amarillo 2001, orig. proceeding). Lawrence has not done that.

       Nor does the record before us contain evidence of the number of other cases,

motions, or issues pending on the trial court’s docket, the number of cases, motions, or

issues which have pended on its docket longer than that at bar, the number of cases,

motions, or issues pending on its docket that lawfully may be entitled to preferential

settings, or the trial court’s schedule. Without it, any attempt to assess whether the trial

court unreasonably delayed in addressing the complaint and applications would be mere

speculation, and we may not engage in that.


       1
         The items appear in cause number 10178, styled Ju dy Law renc e, trus tee of the A . M. & J.,
Co ldwater, and Red R iver T rusts v. Ed die Stafford, et al., 69 th Jud icial District Co urt.

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       In sum, Lawrence has not carried her burden entitling her to a writ of mandamus.

This does not mean, however, that she is precluded from doing so in the future.

Accordingly, the petition for writ of mandamus is denied, and the clerk of this court is

ordered to forward a copy of this opinion to Lawrence and the trial court by a means which

personally and timely acquaints each with its entry. Finally, Lawrence’s “Motion for

Temporary Relief and Stay of Proceedings” accompanying her application for mandamus

relief is denied as moot.



                                                Per Curiam




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