Court of Appeals of Texas, Seventh District, Amarillo
Original Proceeding Arising From Proceedings Before the 223rd
District Court Gray County, Texas Trial Court No. 39, 194;
Honorable Phil N. Vanderpool, Presiding
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Steven Boyd, an inmate proceeding pro se and in
forma pauperis, seeks a writ of mandamus to compel the
Honorable Phil N. Vanderpool to rule on a pending divorce
action. Relator has complied with all the requirements of
Rule 52.3 of the Texas Rules of Appellate Procedure. By two
issues, he contends (1) the trial court arbitrarily refused
to rule on his petition for divorce and (2) he is entitled to
relief as a matter of law. For the reasons explained herein,
we deny Relator's request.
filed a pro se petition for divorce on March 7,
2018. A month later, he filed a Motion for Issuance of
Bench Warrant for the purpose of attending a hearing in
his divorce action. On September 7, 2018, he filed a motion
for summary judgment seeking a final decree of divorce. By
letter to the Gray County District Clerk file-stamped October
25, 2018, he inquired on the status of his divorce petition
and asked "when it will be addressed on the
merits." Finally, on April 17, 2019, Relator filed a
Motion for Trial Setting requesting that his divorce
petition be heard or that the trial court render a judgment
"on or before May 11, 2019."
Standard of Review
is an extraordinary remedy granted only when a relator can
show that (1) the trial court abused its discretion and (2)
that no adequate appellate remedy exists. In re H.E.B.
Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex.
2016) (orig. proceeding) (per curiam). When seeking mandamus
relief, a relator bears the burden of proving these two
requirements. Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992) (orig. proceeding).
establish an abuse of discretion, the relator must
demonstrate the trial court acted unreasonably, arbitrarily,
or without reference to any guiding rules or principles.
See Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985). To establish no adequate
remedy by appeal, the relator must show there is no adequate
remedy at law to address the alleged harm and that the act
requested is a ministerial act, not involving a discretionary
or judicial decision. State ex rel. Young v. Sixth
Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210
(Tex. Crim. App. 2007) (orig. proceeding). Furthermore, in
order to establish a ministerial act, a relator must also
show (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).
on In re Christensen, 39 S.W.3d 250 (Tex.
App.-Amarillo 2000, orig. proceeding), Relator maintains he
is entitled to a ruling in his divorce action that has been
pending for more than twelve months. In re
Christensen involved a motion by an incarcerated
individual to review his trial and appellate record under the
Texas Public Information Act. Id. Christensen filed
a proposed order on his motion, a setting request for June
12, 2000, and a proposed order on that motion. Id.
at 251. Christensen subsequently filed a motion to compel.
This court found that Christensen was entitled to mandamus
relief in the form of having his motion heard and ruled on by
the trial court. Id. (citing Creel v. District
Atty. For Medina County, 818 S.W.2d 45, 46 (Tex. 1991)).
re Christensen is distinguishable. In that proceeding,
the respondent judge filed a response to the petition for
writ of mandamus. This court noted that the respondent did
not (1) contest relator's recitation of facts, (2)
question presentment of relator's motion, (3) assert that
he had set or ruled on the motion, or (4) question whether
the motion was properly filed and properly pending. In re
Christensen, 39 S.W.3d at 251. This court found that
relator was entitled to have his motion heard and ruled on
but that the ruling was within the trial court's
proceeding, Relator has filed a letter to the district clerk
and a motion for a trial setting which was filed by the
district clerk. The limited mandamus record does not reflect
that Judge Vanderpool filed a response to Relator's
petition. Nor is there anything in the record to indicate the
trial court is aware of the pending divorce proceeding and
subsequent motions filed thereafter. A trial court cannot be
expected to consider a request for a ruling not called to its
attention. In re Chavez, 62 S.W.3d 225, 228 (Tex.
App.-Amarillo 2001, orig. proceeding). Filing an inquiry with
the district clerk does not prove the petition for divorce or
any pending motions were brought to the trial court's
attention. A clerk's knowledge of a filing is not imputed
to the trial court. Id. Merely alleging that
something was filed with or mailed to the district clerk does
not satisfy that requirement. In re Goodson, No.
07-18-00114-CV, 2018 Tex.App. LEXIS 3175, at *3 (Tex.