in Re: James Bell McCoy, Sr.

• Court: Court of Appeals of Texas
• Decided: August 24, 2009
• Docket: 13-09-00472-CV
• Status: Published

Opinion

NUMBER 13-09-00472-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE JAMES BELL MCCOY, SR.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Per Curiam Memorandum Opinion1

Relator, James Bell McCoy, Sr., pro se, seeks a writ of mandamus to compel the

Honorable Sandra Watts, Judge of the 117th District Court of Nueces County, Texas, to

rule on relator’s “Motion to Compel,” which was allegedly submitted on June 16, 2009.2

We deny the petition for writ of mandamus.

1 See T EX . R. A PP . P. 52.8(d) (“W hen denying relief, the court m ay hand down an opinion but is not required to do so.”); T EX . R. A PP . P. 47.4 (distinguishing opinions and m em orandum opinions).

2 In addition to the petition for writ of m andam us, relator also filed a “Motion for Leave of Court to File Fewer Copies” and a “Motion to Proceed in Form a Pauperis.” The Court, having exam ined and fully considered these m otions, grants them without separate order. A mandamus petitioner establishes that the trial court abused its discretion by failing

to rule on a matter if the petitioner shows that the trial court: (1) had a legal duty to rule; (2)

was asked to rule; and (3) failed or refused to do so. See In re Dimas, 88 S.W.3d 349, 351

(Tex. App.–San Antonio 2002, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex.

App.–Amarillo 2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex.

App.–Houston [1st Dist.] 1992, orig. proceeding); accord O'Connor v. First Ct. of Appeals,

837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding). A trial court has a reasonable time to

perform the ministerial duty of considering and ruling on a matter properly filed and before

the court. Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426. Whether the judge has

acted within a “reasonable” period of time depends on the circumstances of the case.

Chavez, 62 S.W.3d at 228.

A party who complains about a trial court's refusal to hear or rule on a matter must

show that the matter was brought to the attention of the trial court and that the trial court

failed or refused to rule. In re Hearn, 137 S.W.3d 681, 685 (Tex. App.–San Antonio 2004,

orig. proceeding); Barnes, 832 S.W.2d at 426-27; see e.g., In re Daisy, 156 S.W.3d 922,

924 (Tex. App.–Dallas 2005, orig. proceeding) (granting mandamus relief when record

contained several letters from the trial court explaining its refusal to rule on relator's

motion). Merely filing the matter with the district clerk is not sufficient to impute knowledge

of the pending pleading to the trial court. Hearn, 137 S.W.3d at 685; Chavez, 62 S.W.3d

at 228.

Relator alleges that he “submitted” his motion to compel on June 16, 2009, and, on

July 8, 2009, wrote the court a letter asking it to consider the motion to compel within

twenty days. The record currently before us Court fails to establish: (1) the filing date for

relator’s motion; (2) that relator has called the trial court's attention to his motion or

2 requested that a hearing be set to determine its merit; and (3) whether the trial court has

had a reasonable time within which to rule but has failed or refused to do so. Therefore,

we cannot conclude that relator has shown any abuse of discretion by the trial court. See

In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.–Amarillo 2003, orig. proceeding).

The Court, having examined and fully considered the petition for writ of mandamus,

is of the opinion that relator has not shown himself entitled to the relief sought.

Accordingly, the petition for writ of mandamus is DENIED. See TEX . R. APP. P. 52.8(a).

PER CURIAM

Memorandum Opinion delivered and filed this 24th day of August, 2009.