NO. 07-12-0407-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 9, 2012
______________________________
IN RE RICHARD E. GAMBLES, RELATOR
_________________________________
ORIGINAL PROCEEDING
ARISING OUT OF PROCEEDINGS BEFORE THE 364TH DISTRICT COURT
OF LUBBOCK COUNTY; NOS. 96-422700 & 96-422701;
HONORABLE BRADLEY S. UNDERWOOD, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Relator, Richard E. Gambles, proceeding pro se and in forma pauperis, seeks a
writ of mandamus to compel the “Judge of Presiding Court” and “Clerk” to file, process
and rule on a motion for chapter 64 forensic DNA testing. 1 For the reasons expressed
herein, we deny Relator’s request for relief. He contends he submitted a motion for
DNA testing on September 17, 2012 and asserts that over thirty days has passed
without obtaining a ruling. The date of this opinion disputes his contention.
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See TEX. CODE CRIM. PROC. ANN. art. 64.01 (W EST SUPP. 2012).
MANDAMUS STANDARD OF REVIEW
Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone
Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "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, 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).
ANALYSIS
Initially, we address Relator’s failure to comply with all of the mandatory
requirements of Rule 52.3 of the Texas Rules of Appellate Procedure. See generally
Tex. R. App. P. 52.3(a)–(k). Most importantly, he has failed to name a respondent. See
Tex. R. App. P. 52.3(a) & (d)(2). We deduce that the respondent is the Honorable
Bradley S. Underwood from copies of correspondence dating back to 2002 which are
included as exhibits to his petition. Relator has also failed to include a certified or sworn
copy of the motion for DNA testing with his petition as required by Rule 52.3(k)(1)(A). A
party proceeding pro se is not exempt from complying with rules of procedure. See
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Relator has not
provided this Court with a sufficient record to determine whether he is entitled to
mandamus relief against a judge. 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).
Assuming, arguendo, that Relator’s petition substantially complied with Rule
52.3, not enough time has lapsed from the time the motion was allegedly filed to
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demand a ruling. 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). However, the trial court has a reasonable time within
which to perform that 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).
MANDAMUS PROCEEDING AGAINST A DISTRICT CLERK
This Court has the authority to issue writs of mandamus against a judge of a
district or county court in our district and all writs necessary to enforce our jurisdiction.
TEX. GOV'T CODE ANN. § 22.221(b) (WEST 2004). In order for a district clerk to fall within
our jurisdictional reach, it must be established that the issuance of the writ of
mandamus is necessary to enforce our jurisdiction. In re Coronado, 980 S.W.2d 691,
692-93 (Tex.App.—San Antonio 1998, no pet.). Relator has not demonstrated that the
exercise of our mandamus authority against an unnamed district clerk is appropriate to
enforce our jurisdiction. Consequently, we have no jurisdiction to entertain Relator’s
request.
CONCLUSION
Relator’s petition for writ of mandamus is denied.
Patrick A. Pirtle
Justice
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