In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00058-CV
IN RE RICHARD JAMES JOHNSON, RELATOR
OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
March 5, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Relator, Richard James Johnson, has filed a petition for writ of mandamus
wherein he seeks a writ directing the Honorable Don R. Emerson, 320th Judicial
District, Potter County, to rule upon his motion. The motion in question purports to be
one soliciting a trial date. We deny the petition.
Background
Johnson filed suit against Michael Venable, which suit was assigned cause
number 101,022-D. It was dismissed by the trial court, and Johnson appealed.
Thereafter, we reversed the order of dismissal and remanded the cause on December
12, 2014. According to Johnson’s mandamus petition, he filed the aforesaid motion
asking the trial court to set the matter for trial. The motion was filed on December 16,
2014. Allegedly, the trial court has yet to act on the motion and assign a trial date.1
Law and Analysis
First, nothing of record indicates that the motion purportedly filed below was
brought to the attention of the district court. Simply put, before mandamus relief may
issue, 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
it. O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992); In re Chavez,
62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). Given this, it is
encumbent upon Johnson to illustrate that the district court received and was aware of
his motion. This is so because a court cannot be faulted for doing nothing when it is or
was unaware of the need to act. And, filing something with the district clerk does not
alone establish that the trial court knew of it; nor is the clerk’s knowledge imputed to the
trial court. In re Chavez, 62 S.W.3d at 228. Thus, Johnson must prove that the trial
court received notice of the pleading. Id.
Here, the record simply indicates that Johnson “sent a Motion requesting that
[the] trial court set [a] date for trial or evidentiary hearing.” Whether the trial court was
ever made aware of it is unknown. Lacking that information, we cannot simply assume
that the district court knew of its duty to act and neglected to perform it. Thus, Johnson
has not fulfilled his burden to illustrate that the trial court refused to act.
Next, a district court has a duty to consider and act upon motions of which it
knows. In re Bates, 65 S.W.3d 133, 134-35 (Tex. App.—Amarillo 2001, orig.
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Johnson failed to provide us a copy of the motion but states in his petition that he is unable to
obtain a copy due to lack of funds.
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proceeding); In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.—San Antonio 1998, orig.
proceeding). This is so because the task of considering it is ministerial. In re 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 at 269-70.
However, the court has a reasonable time within which to act. In re Bates, 65 S.W.3d at
135. And, whether that period lapsed is dependent upon the circumstances of each
case. Id. 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.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 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.
Since 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); In re Bates, 65 S.W.3d at 135, Johnson had the obligation to provide us
with a record establishing that a properly filed motion has awaited disposition for an
unreasonable length of time. He has not done that. Instead, the petition merely
illustrates that Johnson “sent” his motion on December 16, 2014. And, because we do
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not hold that the district court’s failure to act upon a motion about which it may have no
knowledge constitutes unreasonable delay per se, Johnson again has not satisfied his
burden of proof.
For the foregoing reasons, Johnson’s petition for writ of mandamus is denied.
Per Curiam
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