Court of Appeals of Texas, Twelfth District, Tyler
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. Worthen Chief Justice
Michael Allyn Kennedy, filed this original proceeding to seek
a writ of mandamus compelling Respondent to issue a summons
and complaint in his lawsuit against Real Parties in
Interest, Anderson County, Frederick Kennedy, and the City of
Palestine, which he states was filed on April 3,
2019. According to Relator, Respondent refuses
to act on his lawsuit or "bring the suit to the
court." Relator states that he filed three motions for
issuance of a summons and complaint, filed in April and May,
but Respondent has not ruled on the motions. He also appears
to complain that no cause number has been issued for his
first note that Relator's lawsuit does have an assigned
cause number, DCCV18-592-369. Second, to obtain a writ of
mandamus compelling a trial court to consider and rule on a
motion, the relator must show that the trial court (1) had a
legal duty to perform a nondiscretionary act, (2) was asked
to perform the act, and (3) failed or refused to do so.
In re Molina, 94 S.W.3d 885, 886 (Tex. App.-San Antonio
2003, orig. proceeding). Generally, a trial court has a
nondiscretionary duty to consider and rule on a motion within
a reasonable time. In re Thomas, No. 12-05-00261-CV,
2005 WL 2155244, at *1 (Tex. App.-Tyler Sept. 7, 2005, orig.
proceeding) (mem. op.). However, a trial court cannot be
expected to consider a motion not called to its attention.
See In re Chavez, 62 S.W.3d 225, 228 (Tex.
App.-Amarillo 2001, orig. proceeding). It is incumbent upon
the relator to establish that the motion has been called to
the trial court's attention. See id.
case, Relator provides no evidence demonstrating that
Respondent was afforded or had notice of Relator's
motions. Nor does Relator present evidence, such as a docket
sheet, demonstrating that Respondent has not ruled on his
motions. See In re Creag, No. 12-17-00191-CV, 2017
WL 2665987, at *1 (Tex. App.-Tyler June 21, 2017, orig.
proceeding) (mem. op.); see also In re Vasquez, No.
05-15-00592-CV, 2015 WL 2375504, at *1 (Tex. App.-Dallas May
18, 2015, orig.
proceeding) (mem. op.) (denying petition that failed to
include a docket sheet or other form or proof that trial
court had not ruled on motion).
by his own admission, Relator recently filed his lawsuit in
April 2019. "Trial courts are generally granted
considerable discretion when it comes to managing their
dockets." In re Conner, 458 S.W.3d 532, 534
(Tex. 2015). Whether the trial court has had a reasonable
time within which to rule depends on the circumstances of
each case, and "no bright-line demarcates the boundaries
of a reasonable time period." Chavez, 62 S.W.3d
at 228. "Its scope is dependent upon a myriad of
criteria, not the least of which is the trial court's
actual knowledge of the motion, its overt refusal to act on
same, the state of the court's docket, and the existence
of other judicial and administrative matters which must be
addressed first." Id. at 228-29. Relator
presents no evidence of the number of other cases, motions,
or issues pending on Respondent's docket, those which
have pended on the docket longer than the present case, those
pending on the docket that lawfully may be entitled to
preferential settings, or Respondent's schedule. See
id., 62 S.W.3d at 229. Absent such evidence, we cannot
say that a reasonable time for ruling has passed with respect
to Relator's motions. See id. at 228-29.
Accordingly, we conclude that Relator has not established his
entitlement to mandamus relief.
Relator has not shown that he is entitled to mandamus relief,
we deny the petition for writ of mandamus. All
pending motions are overruled as moot.
DAY came to be heard the petition for writ of mandamus filed
by Michael Allyn Kennedy; who is the relator in appellate
cause number 12-19-00244-CV and the plaintiff in trial court
cause number DCCV18-592-369, pending on the docket of the
369th Judicial District Court of Anderson County, Texas. Said
petition for writ of mandamus having been filed herein on
July 1, 2019, and the same having been duly considered,
because it is the opinion of this Court that the writ should
not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED
that the said petition for writ of mandamus be, and the same
is, hereby denied.
 Respondent is the Honorable C. Michael
Davis, Judge of the 369th District Court in Anderson ...