Opinion
No. 14-08-00743-CV
Opinion filed August 26, 2008.
Original Proceeding Writ of Mandamus.
Panel consists of Justices ANDERSON, FOWLER, and FROST.
MEMORANDUM OPINION
On August 6, 2008, relator Robert Lee Banargent filed a petition for writ of mandamus which we construe as a request that we order the trial court to rule on relator's Motion for Relief from Judgment. No sworn record has been filed, see Tex. R. App. P. 52.7, and relator's certificate of service does not reflect that the petition was served upon the respondent. See Tex. R. App. P. 9.5; In re Williams, No. 01-03-00401-CV, 2003 WL 1989679, at *1 (Tex.App.-Houston [1st Dist.] May 1, 2003, orig. proceeding) (mem. op.) (denying mandamus petition for failure to demonstrate service of petition upon respondent). We deny the petition for writ of mandamus.
Hon. Thomas R. Culver, III, presiding judge of the 240th District Court, Fort Bend County.
When a motion is properly filed and pending before a trial court, the act of considering and ruling upon that motion is not a discretionary act, and mandamus may issue to compel the trial court to act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding). A trial court has a reasonable time to perform the ministerial duty of considering and ruling on a matter that was properly filed and before the court. See In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001, orig. proceeding). No bright line defines the boundaries of what may be considered reasonable. See id. Instead, whether the judge has acted within a reasonable time depends upon the particular circumstances of the case, and rests on a "myriad of criteria." See id.
The absence of a mandamus record prevents us from evaluating the circumstances of this case and, consequently, the merits of relator's complaints. See Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding) ("Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks."). It is relator's obligation to provide us with evidence against which we could test the reasonableness of the trial court's alleged delay. See Chavez, 62 S.W.3d at 229. We must therefore conclude that relator has not established his entitlement to the extraordinary relief of a writ of mandamus.
Even if the petition met the briefing requirements of the Texas Rules of Appellate Procedure, including a satisfactory record, it nevertheless would be denied. Mandamus relief does not lie where the relator has an adequate appellate remedy. See In re Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004) (orig. proceeding). To the extent that relator's "Motion for Relief from Judgment" liberally could be construed as a motion for new trial, if not previously ruled-upon by written order, such motion would be overruled by operation of law upon the expiration of seventy-five days from the date the judgment was signed. See Tex. R. Civ. P. 329b(c); Duncan v. City of Houston, No. 01-05-00079-CV, 2006 WL 181399, at *5 (Tex.App.-Houston [1st Dist.] Jan. 26, 2006, pet. denied) (mem. op.). Therefore, relator has not demonstrated that his appellate remedy is inadequate.
Although relator instructed the trial court to rule on his motion within thirty days, he cites no authority for the suggestion that the trial court was bound by that purported deadline. See Chavez, 62 S.W.3d at 228 (permitting a "reasonable time" for trial judges to rule on properly-pending motions). We also note, but decline to comply with, relator's ultimatum that we act upon his non-emergency mandamus petition within one week of its filing.
Accordingly, we deny the petition for writ of mandamus in case number 14-08-00743-CV, and all other requests for relief contained in that petition.