in the Matter of the Marriage of Opal Jeanette Reilman and Larry Joseph Reilman

• Court: Court of Appeals of Texas
• Decided: August 18, 2003
• Docket: 07-03-00006-CV
• Status: Published

Opinion

NO. 07-03-0006-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

AUGUST 18, 2003

______________________________

IN THE MATTER OF THE MARRIAGE OF OPAL JEANETTE REILMAN AND LARRY JOSEPH REILMAN _________________________________

FROM THE 69^TH DISTRICT COURT OF HARTLEY COUNTY;

NO. 4028H; HONORABLE RON ENNS, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS, J. and BOYD, S.J. ⁽¹⁾

MEMORANDUM OPINION

Pending before this Court is appellant's motion to dismiss his appeal. Appellant has conferred with appellee and there is no objection. Tex. R. App. P. 42.1. No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith.

John T. Boyd

Senior Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

st satisfy three requirements to establish his entitlement to the issuance of a writ of mandamus, to-wit: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). When a motion is properly filed and 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). Other factors are influential such as the trial court's actual knowledge of the motion, its overt refusal to act, the state of its docket, and other judicial and administrative duties which must be addressed. In re Villarreal, 96 S.W.3d 708, 711 (Tex.App.-Amarillo 2003, orig. proceeding). Further, the party requesting relief must provide a sufficient record to establish his entitlement to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). See also In re Bates, 65 S.W.3d 133, 135 (Tex.App.-Amarillo 2001, orig. proceeding); In re Villarreal, 96 S.W.3d at 710 n.2 (filing something with the district clerk does not demonstrate that a motion has been brought to the trial court's attention).

Several copies of documents presumably filed in the convicting court accompany relator's petition for writ of mandamus. On August 29, 2005, he filed a motion in the convicting court requesting appointment of counsel to pursue a motion for DNA testing pursuant to article 11.07, section four of the Texas Code of Criminal Procedure. A motion for leave to subpoena or call potential witnesses was filed on September 12, 2005, and on September 19, 2005, he filed a motion for leave for supplemental [sic] and exhibits.

According to copies of three letters dated October 5, November 1, and December 19, 2005, relator corresponded with the Wilbarger County District Clerk inquiring on the disposition of his motions. A copy of the District Clerk's response to relator's October 5th inquiry indicates his request was forwarded to his attorney, Earl Griffin. The limited record before us also contains a file-stamped motion dated November 29, 2005, for leave to compel the District Judge of Wilbarger County to act on relator's petition for writ of habeas corpus. Nothing in the scant record demonstrates presentation of the motions to the trial court and a refusal to act. We conclude relator has not satisfied the burden to show his entitlement to mandamus relief. See Walker, 827 S.W.2d at 837.

Accordingly, relator's petition for writ of mandamus is denied.

Don H. Reavis

Justice