                                           NO. 07-06-0219-CV

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                  PANEL B

                                         JUNE 7, 2006
                                ______________________________

                                       In re CEDRIC A. JONES,

                                                      Relator
                             _________________________________

                                   MEMORANDUM OPINION
                               _______________________________

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

        Pending before the court is the petition of Cedric A. Jones for a writ of mandamus.

Jones requests that we order the Hon. Patrick A. Pirtle, 251st Judicial District, Potter

County, to “make a ruling on the motions therein filed on the default judgment." We deny

the application for the reasons which follow.

        First, rules of procedure obligate one seeking mandamus relief to accompany his

petition with an appendix. 1 TEX . R. APP . P. 52.3(j). The latter must include, among other

things, a "certified or sworn copy of . . . [the] document showing the matter complained of."

In this case, the document showing the matter complained of would be the motion allegedly

filed requesting a default judgment. None was provided to us, however, via appendix or

otherwise. Thus, it cannot be said that Jones complied with Rule 52.3(j).



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          That Jones acts in a pro se capacity does not relieve him from com plying with the rules of ap pellate
proc edu re. Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex. App.–Am arillo 1998, pe t. denied).
       Second, Jones failed to accompany his petition with the requisite filing fee or an

affidavit illustrating his inability to pay the fee. See TEX . R. APP . P. 20.1(b).

       Third, a trial court cannot be found to have abused its discretion until the

complainant establishes that the 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 so. O'Connor v. First

Court of Appeals, 837 S.W. 2d 94, 97 (Tex. 1992). To the extent that Jones complains of

the trial court's failure to convene a hearing and rule upon his alleged motion, application

of the foregoing rule would necessarily require him to illustrate that the trial court was aware

of the motion. Indeed, one can hardly be faulted for doing nothing if he was never aware

of the need to act.

       Here, nothing appears of record illustrating that the trial court was afforded or had

notice of the motion. Nor does anything appear of record which would allow one to

reasonably infer that such notice was given or knowledge was had. Admittedly, Jones

stated in the body of his petition that "the motion for default judgment has been recieved

[sic] and filed on Febuary [sic] 20' 2006.'” He further states that he “recieved [sic] a

confirmation that the motion was filed and the court recieving [sic] the motion.” Yet, the

identity of the entity with which he filed the instrument is unknown. This is of import

because the entity could have been either the district clerk or the trial court. TEX . R. CIV .

P. 74 (stating that pleadings, papers and the like shall be filed with the clerk of the court or

with the court itself if permitted). If filing occurred with the district clerk, we know of no rule

which imputes the clerk's knowledge to the trial court. Thus, it would be incumbent upon

appellant to illustrate that the clerk informed the trial court of the motion or that the trial

court otherwise obtained knowledge of it. So, merely stating that something was "properly

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filed" is insufficient basis from which to reasonably infer that the trial court had notice of that

something and the need to act on it. And, because the state of the record prevents us from

holding that the trial court was aware of the motion, we cannot say that the court abused

its discretion in allegedly failing to act on same.

       Fourth, and assuming arguendo that the motion is brought to the attention of a

district court, the latter has a duty to consider and rule upon it. Ex parte 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 act of

considering it is ministerial. 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 (Tex. App.–Tyler 1993, orig. proceeding). However,

the court has a reasonable time within which to act. Id. And, whether that period lapsed

is dependent upon the circumstances of each case. Ex parte Bates, 65 S.W.3d at 135.

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.

Ex parte Bates, 65 S.W.3d at 135; see Ho v. University of Texas at Arlington, 984 S.W.2d

672, 694-695 (Tex. App.–Amarillo 1998, pet. denied) (holding that a court has the inherent

authority to control its own docket). Since that power is discretionary, Hoggett v. Brown,

971 S.W.2d 472, 495 (Tex. App.–Houston [14th Dist.] 1997, no pet.), we must be wary of

interfering with its exercise without legitimate basis. And, since the party requesting

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mandamus relief has the burden to provide us with a record sufficient to establish his right

to same, Ex parte Bates, 65 S.W.3d at 135; Walker v. Packer, 827 S.W.2d 833 (Tex. 1992),

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

has awaited disposition for an unreasonable length of time.

       The record before us merely illustrates that Jones may have filed his "Motion for

Default Judgment" on or about February 20, 2006, that is, a little more than three months

ago.   Yet, no other evidence touching upon the indicia discussed in the foregoing

paragraph appears of record. And, because we do not hold that the district court's failure

to act within three months upon a motion being filed per se constitutes unreasonable delay,

Jones failed to satisfy his burden of proof.

       Accordingly, the petition for writ of mandamus is denied.



                                                   Brian Quinn
                                                   Chief Justice




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