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In re Keeter

Court of Appeals of Texas, Tenth District

August 28, 2019

IN RE JACKIE RUSSELL KEETER

          Original Proceeding

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          MEMORANDUM OPINION

          REX D. DAVIS JUSTICE

         In this original proceeding, Relator Jackie Russell Keeter seeks to compel the respondent, the Judge of the 220th Judicial District Court of Hamilton County, to rule on his "Motion Nunc Pro Tunc."

         "A court with mandamus authority 'will grant mandamus relief if relator can demonstrate that the act sought to be compelled is purely 'ministerial' and that relator has no other adequate legal remedy.'" In re Piper, 105 S.W.3d 107, 109 (Tex. App.-Waco 2003, orig. proceeding) (quoting State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 197-99 (Tex. Crim. App. 2003) (orig. proceeding)). Consideration of a motion properly filed and before the court is ministerial. State ex rel. Hill v. Ct. of App. for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).

Mandamus may issue to compel a trial court to rule on a motion which has been pending before the court for a reasonable period of time. See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.-San Antonio 2004, orig. proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex. App.-Waco 2003, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.- Houston [1st Dist.] 1992, orig. proceeding); see also In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.-El Paso 2006, orig. proceeding). To obtain mandamus relief for such refusal, 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. See Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at 252; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; see also Shredder Co., 225 S.W.3d at 679. The mere filing of a motion with a trial court clerk does not equate to a request that the trial court rule on the motion. See Hearn, 137 S.W.3d at 685; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. Shredder Co., 225 S.W.3d at 680 ("Relator has made repeated requests for a ruling on its motion.").

In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.-Waco 2008, orig. proceeding) (mem. op.) (emphasis added).

         A trial judge has a reasonable time to perform the ministerial duty of considering and ruling on a motion properly filed and before the judge. Chavez, 62 S.W.3d at 228. But that duty generally does not arise until the movant has brought the motion to the trial judge's attention, and mandamus will not lie unless the movant makes such a showing and the trial judge then fails or refuses to rule within a reasonable time. See id. Also, the mere filing of a matter with the clerk does not impute knowledge to the trial judge. See In re Flores, No. 04-03-00449-CV, 2003 WL 21480964, at *1 (Tex. App.-San Antonio Jun. 25, 2003, orig. proceeding) (mem. op.).

         Keeter bears the burden of providing a sufficient record to establish his right to mandamus relief. See In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.-Texarkana 2008, orig. proceeding); see also In re Mullins, 10-09-00143-CV, 2009 WL 2959716, at *1 n.1 (Tex. App.-Waco Sept. 16, 2009, orig. proceeding) (mem. op.). There is no record showing that Keeter has brought his "Motion Nunc Pro Tunc" to the attention of the trial judge and that the trial judge has then failed or refused to rule within a reasonable time. Accordingly, we deny Keeter's petition for writ of mandamus.

         CONCURRING OPINION

          TOM GRAY Chief Justice

         The problem of trial courts failing to rule on pending motions is an ongoing problem. For the reasons expressed in my concurring opinion in In Re Rangel, 570 S.W.3d 968, 970-971 (Tex. App.-Waco 2019, orig. proceeding), I continue to believe that we are wasting resources by not having a better procedure than the existing case authority on when to deny a petition for writ of mandamus when the petitioner is an inmate trying to simply get a ruling on a motion. See Appendix A. The prophylactic measure that seems to work is a request for a response in a form that advises the respondent and the real-party-in-interest that a ruling on the motion may be submitted in lieu of a response to the petition. See Appendix B. While the Court's precedent supports the Court's ruling in this case, that precedent has proven to be inefficient and ineffective in practice for actually getting the pending motion ruled upon. Thus, while I concur in the judgment of the Court denying the petition, for the reasons stated, I respectfully suggest that there is a better way to actually get the issue resolved which would be to request a response similar to the order utilized in Appendix B.

         Appendix “A”

         CONCURRING ...


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