IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 31, 2004
______________________________
IN THE MATTER OF ROBERT BURNS MCCALL
_________________________________
FROM THE 251st DISTRICT COURT OF POTTER COUNTY;
NO. 90,595-C; HONORABLE PATRICK PIRTLE, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONRobert B. McCall, appellant, an inmate proceeding pro se, appeals the trial court's order dismissing his case for failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code. We dismiss the appeal.
The trial court clerk's record was filed with this court on June 11, 2004; by letter, that same day, this court's clerk gave notice to appellant of the filing of the trial court clerk's record. Pursuant to Texas Rule of Appellate Procedure 38.6(a), appellant's brief was due July 12, 2004. By letter dated August 9, 2004, we notified appellant that the due date for the brief had passed, that the brief had not been filed and no motion for extension of time to file had been received by the court. Citing Texas Rule of Appellate Procedure 38.8, the letter also notified appellant that the appeal would be subject to dismissal unless a response reasonably explaining his failure to file a brief, together with a showing that the appellee has not been significantly injured by the failure, was submitted by August 19, 2004.
Appellant has not filed a response to the court's August 9, 2004 letter, nor has he since submitted a brief or a motion for extension of time.
Accordingly, having given all parties more than the required ten days' notice, we dismiss the appeal for want of prosecution. Tex. R. App. P. 38.8(a)(1); 42.3(b).
James T. Campbell
Justice
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 so. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.--Amarillo 2001, orig. proceeding); O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992). To the extent that Kizzee complains of the district court's failure to rule upon his motion, application of the foregoing rule would necessarily require him to illustrate that it was aware of the document. (2) The court cannot be faulted for doing nothing if it was not aware of the need to act.
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. 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 act of considering it is ministerial. In re Bates, 65 S.W.2d 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. In re Bates, 65 S.W.2d 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. In re Bates, 65 S.W.2d 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 mandamus relief has the burden to provide us with a record sufficient to establish his right to same, In re Bates, 65 S.W.2d at 135; Walker v. Packer, 827 S.W.2d 833 (Tex. 1992), Kizzee 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 Kizzee may have filed his "Motion to Release Evidence" on or about October 17, 2002, that is, a bit more than a month ago. 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 within a month upon a motion being filed per se constitutes unreasonable delay, Kizzee failed to satisfy his burden of proof.
Accordingly, the petition for writ of mandamus is denied.
Brian Quinn
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't
Code Ann. §75.002(a)(1) (Vernon Supp. 2002).
2. Filing something with the district clerk does not mean the trial court is aware of it. Nor is that clerk's
knowledge imputed to the trial court. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.--Amarillo 2001, orig.
proceeding). Thus, it was incumbent upon Kizzee to prove that the trial court received notice. Id. Merely
alleging that something was filed with the district clerk is not enough. Id.