Court of Appeals of Texas, Fifth District, Dallas
IN RE STACEY D. HOWARD, Relator
Original Proceeding from the 401st Judicial District Court
Collin County, Texas, Trial Court Cause No. 401-04354-2013
Justices Myers, Molberg, and Nowell.
Stacey D. Howard was convicted of capital murder in 1995 and
is currently serving a life sentence. On October 29, 2013,
Howard filed the underlying proceeding seeking a judgment
against Jack Lowrey, a former inmate, for money Lowrey
allegedly owed Howard. In 2014, the trial court dismissed
Howard's claims for want of prosecution but reinstated
the case on Howard's motion. Howard filed various motions
before the subsequent trial setting, including a request for
a bench warrant to allow Howard to appear in person at trial.
The trial court dismissed the case again and did not rule on
Howard's pretrial motions. Howard appealed, and this
Court reversed and remanded "for further proceedings
consistent with this opinion." See Howard v.
Lowery, No. 05-15-01380-CV, 2017 WL 1536494, at *3 (Tex.
App.-Dallas Apr. 26, 2017, no pet.) (mem. op.) (concluding
the trial court abused its discretion in dismissing the case
for want of prosecution and failing to grant Howard's
motion to reinstate).
original proceeding, Howard complains that the trial court
has still not ruled on his previously-filed motions,
including the motion for bench warrant and motion for summary
judgment, and has not set the case for trial. By order dated
April 11, 2019, we requested the real party in interest and
Respondent file their responses, if any, to the petition for
writ of mandamus by April 30, 2019. Respondent filed a
response, but the real party in interest did not. After
reviewing the petition, Respondent's response, and the
mandamus record, we conclude relator is entitled to mandamus
relief as to his request that the trial court set the case
motion is properly filed and pending before a trial court,
the act of giving consideration to and ruling upon that
motion is a ministerial act, and mandamus may issue to compel
the trial judge to act. Safety-Kleen Corp. v.
Garcia, 945 S.W.2d 268, 269 (Tex. App.- San Antonio
1997, orig. proceeding). To obtain mandamus relief for the
trial court's refusal to rule on a motion, 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. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.
1979); In re Buholtz, No. 05-16-01312-CV, 2017 WL
462361, at *1 (Tex. App.-Dallas Jan. 31, 2017, orig.
proceeding) (mem. op.); Crouch v. Shields, 385
S.W.2d 580, 582 (Tex. App.-Dallas 1964, writ ref'd
court is required to consider and rule upon a motion within a
reasonable time. Safety-Kleen Corp., 945 S.W.2d at
269; In re Craig, 426 S.W.3d 106, 107 (Tex.
App.-Houston [1st Dist.] 2012, orig. proceeding); In re
Sarkissian, 243 S.W.3d 860, 861 (Tex. App.-Waco 2008,
orig. proceeding). Whether a reasonable time for the trial
court to act has lapsed is dependent upon the circumstances
of each case, and no bright line separates a reasonable time
period from an unreasonable one. In re Shapira, No.
05-16-00184-CV, 2016 WL 1756754, at *1 (Tex. App.- Dallas
Apr. 29, 2016, orig. proceeding) (mem. op.). Among the
criteria included are the trial court's actual knowledge
of the motion, its overt refusal to act, the state of the
court's docket, and the existence of other judicial and
administrative matters that must be addressed first.
Id.; In re First Mercury Ins. Co., No.
13-13-00469-CV, 2013 WL 6056665, at *3 (Tex. App.-Corpus
Christi-Edinburg Nov. 13, 2013, orig. proceeding) (mem. op.).
maintains that the trial court has not ruled on several
motions, including Howard's motions to set a trial date,
motion for summary judgment, motion for rendition of
judgment, application for bench warrant, two petitions for
writ of habeas corpus ad testificandum, motion for discovery
sanctions, and requests for rulings and hearing dates. These
pleadings were filed between April 8, 2014 and January 23,
2018. In his response to the petition, Respondent attached
orders dated April 15, 2019 granting in part relator's
motion for summary judgment and denying relator's request
for a bench warrant. Respondent further stated in the
response that Howard has requested to be present for trial,
but "[t]he trial court has no intention of issuing a
bench warrant or any other type of process to provide
[relator's] attendance when he is service [sic] a
sentence for Capital Murder." Respondent also averred
that he "sees two equally legitimate options" for
handling the trial in this case. First, Respondent suggested
he would "happily work with the prison authorities so
[relator] can appear electronically for trial." Second,
he suggested the trial court carry the case on its docket
until Howard is paroled.
civil action, an inmate retains a right of reasonable access
to the courts and cannot be denied access to the courts
simply because he is an inmate. Hudson v. Palmer,
468 U.S. 517, 523 (1984); Boulden v. Boulden, 133
S.W.3d 884, 886-87 (Tex. App.-Dallas 2004, no pet.). Although
there is no absolute right for an inmate to appear in person
in a civil case, where the trial court determines personal
appearance is not warranted, it should allow the inmate to
proceed by affidavit, deposition, telephone, or other
effective means. Boulden, 133 S.W.3d at 886-87;
In re Webb, No. 07-15-00050-CV, 2015 WL
4462181, at *2, n.3 (Tex. App.-Amarillo July 21, 2015, orig.
proceeding) (mem. op.); In re Ramirez, 994 S.W.2d
682, 684 (Tex. App.-San Antonio 1998, orig. proceeding).
"At a minimum, due process requires a meaningful
opportunity to be heard." In re Webb, 2015 WL
4462181, at *2, n. 3.
Respondent has not explicitly refused to set the case for
trial, he has failed to set the case for trial within a
reasonable time. The case has been pending in the trial court
since July 10, 2017 when this Court's mandate issued
remanding for further proceedings in cause number
05-15-01380-CV. Moreover, Respondent's suggestion that
the trial court carry the case until Howard is released from
confinement is the equivalent of explicitly refusing to set
the case for trial and constitutes a failure to rule within a
reasonable time. See In re Webb, 2015 WL 4462181, at
*2. By failing to rule on Howard's requests for a trial
setting and failing to set the case for trial, the trial
court has failed to perform a ministerial duty, and Howard is
entitled to mandamus relief.
we conditionally grant the writ of mandamus as to
Howard's request that the trial court rule on his
outstanding motions and his requests for a trial setting. We
direct the trial court to, within thirty days of the date of
this opinion, issue written rulings on all motions pending as
of the date of this opinion,  and issue a written order setting
the case for trial in order to proceed to judgment. See
In re Harrell, No. 01-11-00760-CV, 2012 WL 252189, at *4
(Tex. App.- Houston [1st Dist.] Jan. 26, 2012, orig.
proceeding) (mem. op.). In light of the trial court's
denial of Howard's request for a bench warrant, we
further direct the trial court to allow Howard to participate
in pre-trial hearings ...