NO. 12-20-00256-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
JOE MARLIN GILMER, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
Joe Marlin Gilmer, an inmate acting pro se, filed this original proceeding to complain that
Respondent tolled/abated the proceedings based on a suggestion of death, refused to order
issuance of a scire facias, and refused to consider his second petition for a protective order. 1 We
deny the writ.
BACKGROUND
This proceeding relates to the Estate of Billie Gilmer Lawler, a probate proceeding in
trial court cause number 15425. Relator is Billie’s son. 2 According to the record, attorney
Richard Ray filed a suggestion of death on behalf of the heirs of the Estate of Charles (Lindy)
Lawler. 3 Charles is an heir of Billie’s and died on May 21, 2020. His sons, Alan and Larry,
requested that Charles’s appearance be continued in the name of the Estate of Charles (Lindy)
Respondent is the Honorable Joshua Z. Wintters, Judge of the County Court at Law in Van Zandt County,
1
Texas. Donna Jacks and the Estate of Charles Lindy Lawler are the Real Parties in Interest.
2
This fact is based on records filed in another of Relator’s mandamus proceedings regarding the Estate.
See In re Gilmer, No. 12-20-00044-CV, 2020 WL 827589 (Tex. App.—Tyler Feb. 19, 2020, orig. proceeding)
(mem. op.); see also In re Innovation Res. Sol., LLC, No. 12-15-00254-CV, 2016 WL 1254058, at *3 (Tex. App.—
Tyler Mar. 31, 2016, orig. proceeding) (mem. op.) (taking judicial notice of hearing transcript filed in prior, related
mandamus proceeding).
According to documents filed in a previous, related mandamus proceeding, Charles was Billie’s husband.
3
See Gilmer, 2020 WL 827589; see also Innovation Res. Sol., LLC, 2016 WL 1254058, at *3.
Lawler, deceased, an heir. On June 25, 2020, Respondent filed a letter in the Estate of Billie
Gilmer Lawler recognizing receipt of the suggestion of death. Respondent stated, “It is this
Court’s view that, under the law, this case is tolled or abated until the earlier of one of two
potential occurrences: 1) The formal (i.e. Court) appointment of a representative of the Estate of
Mr. Charles Lawler; or 2) The passage of twelve (12) months from the date of Mr. Lawler’s
death.” Respondent advised the parties that he would be taking the following actions:
1) This court will suspend any actions in this matter until the occurrence of one of the above items, meaning,
among other things, that no hearing will be had, including the previously scheduled hearing(s) for July 21,
2020 nor the hearing requested by Mr. Ray on the Suggestion of Death until one of the above conditions
has been met.
2) The Court will NOT grant the proposed Order relative to the Suggestion of Death which would authorize
Mr. Lawler’s sons to proceed in his stead, as doing so would be proceeding based merely on
representations in the pleadings and without a formal probate or administration.
3) Hearings may resume upon filing of Letters Testamentary or Letters of Administration and some
memorialization that any counsel for the Estate/Estate representative has been employed by the personal
representative(s) of the Estate and that no actual or potential ethical conflict of interest exists in proceeding
with such representation.
Respondent recognized that there may be some legal provision that had not yet been brought to
his attention that would allow the matter to lawfully proceed in some fashion; thus, Respondent
instructed the parties to submit any such applicable law or precedent through a formal filing with
the court clerk.
On July 4, Relator drafted a supplemental advisory to Respondent in which he asserted
that the death certificate attached to the suggestion of death is not properly authenticated and
absent probative authenticated evidence of Charles’s death, the July 21 hearing should be
maintained on the docket. In response, Respondent informed the parties that his prior
determination stands, the July 21 hearing remained removed from the docket, all pending
motions will remain pending until the case resumes from abatement, and hearings on pending
matters would be rescheduled. Respondent also signed an order on July 8, denying Relator’s
petition for protective order. On July 31, Alan filed an application for letters of independent
administration in the Estate of Charles Lindy Lawler. That proceeding remains pending.
In an August 27 letter, Relator inquired about the status of his second motion for
protective order and his petition for issuance of a scire facias. The record does not reflect that
2
Respondent ruled on the second motion for protective order or the petition for scire facias.
Relator filed this proceeding on November 12.
ABATEMENT
Before reaching the merits of Relator’s complaint regarding Respondent’s abatement of
the probate proceedings, we first address the delay between Respondent’s rulings and Relator’s
filing of this original proceeding.
Mandamus is an extraordinary remedy and not an absolute right. See Rivercenter
Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993). “Although mandamus is not an equitable
remedy, its issuance is largely controlled by equitable principles.” Id. “One such principle is
that ‘equity aids the diligent and not those who slumber on their rights.’” Id. (quoting Callahan
v. Giles, 137 Tex. 571, 576, 155 S.W.2d 793, 795 (1941)). When the record fails to show that
the relator acted diligently to protect his rights, relief by mandamus is not available. In re Hotze,
No. 20-0739, 2020 WL 5919726, at *3 (Tex. Oct. 7, 2020).
On June 25, 2020, Respondent signed his first letter addressing the suggestion of death
and abating the case. On July 8, Respondent signed the second letter addressing the suggestion
of death after Relator filed a supplemental advisory. That same day, Respondent signed an order
denying Relator’s petition for a protective order, and stated that Respondent “considered the
unsworn and unsupported Petition, the supplement filed thereto, the request for case to resume
from abatement without appointment of a representative of the Estate of the deceased party, and
other requests therein, and FINDS that the relief requested is without merit[.]” Yet, Relator did
not file this original proceeding until November 12, over four months later. Relator offers no
explanation as to why he did not file a petition for writ of mandamus with this Court at an earlier
date. 4 And the record reveals no justification for the delay. See Rivera, 858 S.W.2d at 367.
Accordingly, we conclude that Relator failed to establish diligent pursuit of any complaint
regarding abatement of the probate proceedings. See id. (Rivercenter waited over four months to
seek mandamus relief); see also Hotze, 2020 WL 5919726, at *2-3 (record reflected no
justification for relators’ delay in failing to assert their challenge anytime in ten weeks following
gubernatorial proclamation); In re Webber, L.L.C., No. 05-20-00564-CV, 2020 WL 3496279, at
4
We recognize that the COVID-19 pandemic began in the months preceding the filing of this original
proceeding. This Court, however, remained open to accept filings. Thus, we are unaware of any reason why the
pandemic would have prevented Relator from pursuing mandamus relief at an earlier date.
3
*1 (Tex. App.—Dallas June 29, 2020, orig. proceeding) (mem. op.) (“unexplained delay of four
months or more can constitute laches and result in denial of mandamus relief”).
PROTECTIVE ORDER AND SCIRE FACIAS
According to Relator’s appendix, Respondent signed an order on July 8, 2020, which
overruled Relator’s petition for protective order. According to Relator’s August 27 letter to
Respondent, the second petition was tendered on July 20, a petition for issuance of scire facias
was tendered on August 2, and he inquired about the status of his request for issuance of scire
facias on August 18. Relator sought Respondent’s action on both petitions.
To obtain a writ of mandamus compelling a trial court to consider and rule on a motion,
the relator must show that the trial court (1) had a legal duty to perform a nondiscretionary act,
(2) was asked to perform the act, and (3) failed or refused to do so. In re Molina, 94 S.W.3d
885, 886 (Tex. App.–San Antonio 2003, orig. proceeding). Generally, a trial court has a
nondiscretionary duty to consider and rule on a motion within a reasonable time. In re Thomas,
No. 12–05–00261–CV, 2005 WL 2155244, at *1 (Tex. App.–Tyler Sept. 7, 2005, orig.
proceeding) (mem. op.). It is incumbent upon the relator to establish that the motion has been
called to the trial court’s attention. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo
2001, orig. proceeding).
In the present case, the August 27 letter is not file-marked and there is no indication that
Respondent actually received the letter. See In re Taylor, No. 06-16-00016-CV, 2016 WL
1435386, at *1 (Tex. App.—Texarkana Apr. 12, 2016, orig. proceeding) (relator’s letters to court
were not file-marked or accompanied by other evidence showing their receipt, and did not show
“the trial court received, was aware of, and was asked to rule on his pleadings[ ]”). Thus, based
on the record before us, we cannot conclude that the matters were brought to Respondent’s
attention. And once those matters are brought to Respondent’s attention, he has a reasonable
time in which to rule. See Thomas, 2005 WL 2155244, at *1. Whether the trial court has had a
reasonable time within which to rule depends on the circumstances of each case, and “no bright-
line demarcates the boundaries of a reasonable time period.” Chavez, 62 S.W.3d at 228. “Its
scope is dependent upon a myriad of criteria, not the least of which is 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
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existence of other judicial and administrative matters which must be addressed first.” Id. at 228–
29.
Relator presents no evidence of the number of other cases, motions, or issues pending on
Respondent’s docket, those which have pended on the docket longer than the present case, those
pending on the docket that lawfully may be entitled to preferential settings, or Respondent’s
schedule. See id. at 229. Relator’s appendix does not contain a copy of the second petition for
protective order and the copy of the petition for scire facias is not file marked. Thus, the
evidence does not demonstrate whether either document was actually filed and, if filed, how long
the petitions have actually been pending. “Absent a showing that the particular circumstances of
the case demand a more expeditious ruling, a longer period of time is usually required to elapse
before a trial court is compelled to rule on a properly filed motion.” In re Halley, No. 03-15-
00310-CV, 2015 WL 4448831, at *2 (Tex. App.—Austin July 14, 2015, orig. proceeding) (mem.
op.) (emphasis added). Under these circumstances, we cannot say that Relator’s petitions were
properly filed or that a reasonable time for ruling on the second petition for protective order or
the petition for issuance of scire facias has passed. Accordingly, Relator has not established his
entitlement to mandamus relief.
DISPOSITION
For the reasons discussed above, we deny Relator’s petition for writ of mandamus.
Opinion delivered March 10, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 10, 2021
NO. 12-20-00256-CV
JOE MARLIN GILMER,
Relator
V.
HON. JOSHUA Z. WINTTERS,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by Joe
Marlin Gilmer; who is the relator in appellate cause number 12-20-00256-CV and a party in trial
court cause number 15425, pending on the docket of the County Court at Law of Van Zandt
County, Texas. Said petition for writ of mandamus having been filed herein on November 12,
2020, and the same having been duly considered, because it is the opinion of this Court that the
writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said
petition for writ of mandamus be, and the same is, hereby denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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