COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§ No. 08-15-00270-CV
IN RE: RODNEY JOHN RAMIREZ,
§ ORIGINAL PROCEEDING
Relator.
§ ON PETITION FOR WRIT OF
§ MANDAMUS
MEMORANDUM OPINION
Relator, Rodney Ramirez, a Texas inmate, has filed a petition for writ of mandamus
against the Honorable Mike Herrera, Judge of the 383rd District Court of El Paso County, Texas,
alleging that Respondent has not ruled on Relator’s motion for entry of default judgment or his
motion to be bench warranted or appear by alternative means in response to Respondent’s notice
of intent to dismiss filed in cause number 2004CM4551. We conditionally grant mandamus
relief.
FACTUAL SUMMARY
In 2004, Relator filed a petition for divorce from the real party in interest, Gloria Leticia
Ramirez (cause number 2004CM4551). He also filed a motion for bench warrant to the final
hearing, and alternatively, he sought to attend the hearing by conference call or to present
evidence by affidavit. The trial court dismissed the divorce in 2009 without ruling on Relator’s
request to attend the hearing in person or by alternative means. Relator appealed, and the Court
issued an opinion and judgment reversing the dismissal. See Ramirez v. Ramirez, No. 08-09-
00252-CV, 2010 WL 3419254 (Tex.App.--El Paso August 31, 2010, no pet.) (mem. op., not
designated for publication). The Court found that the trial court had abused its discretion by
dismissing the case without acting on Relator’s request to attend the hearing either in person or
by other means. See Id., at *2. The mandate issued on December 10, 2010.
The trial court’s docket sheet indicates that the court thereafter issued a notice of intent to
dismiss the case on February 24, 2011, and Relator responded by filing a motion for a bench
warrant to appear at the dismissal hearing. The trial court set the case for a dismissal hearing on
September 2, 2011, but the docket sheet does not reflect that the court ever entered a dismissal
order. Relator filed a notice of appeal on September 9, 2011, and the appeal was docketed as
cause number 08-11-00267-CV. On November 8, 2011, the trial court clerk submitted an
affidavit stating that the underlying divorce action was still pending and no final judgment or
appealable order had been entered. Based on this information, the Court dismissed the appeal for
lack of jurisdiction on December 7, 2011. See Ramirez v. Ramirez, No. 08-11-00267-CV, 2011
WL 6209237 (Tex.App.--El Paso December 7, 2011, no pet.) (mem. op., not designated for
publication). The mandate issued on March 6, 2012.
The docket sheet reflects that the trial court has not taken any action on the divorce
petition or Relator’s “motion for entry of default judgment.” To the contrary, a search of the
official record of the case reflects that cause number 2004CM4551 has been closed since March
9, 2012, even though the court has not entered any dismissal order or final judgment. The entry
on the docket sheet under “DISPOSITIONS” simply states “Mandate (Judicial Officer: Herrera,
Mike).”1
1
An appellate court has the discretion to take judicial notice of adjudicative facts that are matters of public record
on its own motion. See TEX.R.EVID. 201(b), (c), (f); see Office of Public Utility Counsel v. Public Utility Comm’n
of Texas, 878 S.W.2d 598, 600 (Tex. 1994); In re Estate of Hemsley, 460 S.W.3d 629, 638 (Tex.App.--El Paso 2014,
pet. denied). Generally, appellate courts take judicial notice of facts outside the record only to determine
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FAILURE TO RULE ON PENDING MOTIONS
The sole issue presented in this mandamus proceeding is whether the trial court has failed
to rule on Relator’s motions for entry of a default judgment and to attend the hearing by bench
warrant or alternative means. To be entitled to mandamus relief, a relator must meet two
requirements. First, the relator must show that the trial court clearly abused its discretion. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004). Second, the relator must
demonstrate that there is no adequate remedy by appeal. Id. at 135-36. Mandamus may issue to
compel a trial court to rule on a motion which has been pending before the court for a reasonable
period of time. See In re Shredder Co., 225 S.W.3d 676, 679 (Tex.App.--El Paso 2006, orig.
proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex.App.--San Antonio 2004, orig. proceeding);
In re Chavez, 62 S.W.3d 225, 228 (Tex.App.--Amarillo 2001, orig. proceeding). To obtain
mandamus relief for such refusal, a relator must establish: (1) the motion was properly filed and
has been pending for a reasonable time; (2) the relator requested a ruling on the motion; and (3)
the trial court refused to rule. See Shredder Co., 225 S.W.3d at 679; Hearn, 137 S.W.3d at 685;
Chavez, 62 S.W.3d at 228.
The docket sheet and the Court’s opinion in cause number 08-09-00252-CV establish that
Relator filed his motions and brought them to the attention of the trial court. Despite this Court’s
reversal of the dismissal order, the trial court has not ruled on the pending motion for entry of
default judgment or on Relator’s motions to appear by bench warrant or by other alternative
means. Those motions have been pending since the mandate issued in cause number 08-09-
jurisdiction or to resolve matters ancillary to decisions which are mandated by law. Hemsley, 460 S.W.3d at 638; In
re R.A., 417 S.W.3d 569, 576 (Tex.App.--El Paso 2013, no pet.); SEI Business Sys., Inc. v. Bank One Texas, N.A.,
803 S.W.2d 838, 841 (Tex.App.--Dallas 1991, no writ); see Freedom Comm’ns, Inc. v. Coronado, 372 S.W.3d 621,
624 (Tex. 2012) (court determined it was appropriate to take judicial notice of facts in a plea agreement because
they were relevant to determination whether trial court had jurisdiction). Appellate courts are reluctant to take
judicial notice of matters which go to the merits of a dispute. Hemsley, 460 S.W.3d at 639; In re R.A., 417 S.W.3d
at 576; SEI Business Sys., 803 S.W.2d at 841. It is appropriate to take judicial notice of the official record to
determine the current status of the underlying case.
-3-
00252-CV on December 10, 2010. The official record reflects that the trial court, perhaps
inadvertently, closed the case based upon the mandate issued in connection with the second
appeal, 08-11-00267-CV; that mandate, however, did not finally dispose of the divorce action.
Under these unusual circumstances, Relator has carried his burden of showing that he is entitled
to mandamus relief. We sustain Relator’s sole issue and conditionally grant mandamus relief.
The 383rd District Court is directed to act on Relator’s pending motions. The writ of mandamus
will issue only if the trial court fails to act in accordance with this decision.
STEVEN L. HUGHES, Justice
November 5, 2015
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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in Re: Rodney John Ramirez
Combined Opinion