in the Matter of the Marriage of Patricia Richards and Lucky Britton

• Court: Court of Appeals of Texas
• Decided: October 9, 2012
• Docket: 07-12-00208-CV
• Status: Published

Opinion

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.

1 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

2 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