In re Darrell Craig White--Appeal from 81st Judicial District Court of Karnes County

MEMORANDUM OPINION

No. 04-04-00091-CV

IN RE Darrell Craig WHITE

Original Mandamus Proceeding (1)

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: February 25, 2004

PETITION FOR WRIT OF MANDAMUS DENIED

On February 11, 2004, relator filed a petition for writ of mandamus in this court, asking this court to order the trial court to rule on his motion for temporary injunction. A trial court is required to consider and rule upon a motion within a reasonable time. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.--San Antonio 1997, orig. proceeding). When a 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. Id. However, the trial court has a reasonable time within which to perform this ministerial duty. Id. Accordingly, if a court unnecessarily delays ruling, mandamus will lie in appropriate situations.

A myriad of factors are influential, not the least of which are 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. In re Bates, 65 S.W.3d 133, 135 (Tex. App.--Amarillo 2001, orig. proceeding). So too must the trial court's inherent power to control its own docket be factored into the mix. Id. Because it is the burden of the party requesting mandamus relief to prove his entitlement to same, relator had the obligation to provide us with evidence of the foregoing indicia against which we could test the reasonableness of the respondent's supposed delay. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992).

Relator filed a motion for temporary injunction on or about December 9, 2003. Less than three months has expired since then. Without evidence of the trial court's overt refusal to entertain the motion (which evidence is absent here), we cannot hold as a matter of law that the passage of less than three months constitutes a per se unreasonable time period. Nor will we presume from the mere passage of less than three months that the trial court has refused to act upon the motion. We have no evidence of the number of other cases, motions, or issues pending on the trial court's docket, the number of cases, motions, or issues which have pended on its docket longer than that at bar, the number of cases, motions, or issues pending on its docket that lawfully may be entitled to preferential settings, or the trial court's schedule. Without such evidence, any attempt to assess whether the respondent unreasonably delayed in disposing of relator's motion would be mere folly. Also, even if a three month delay in ruling on relator's motion is unreasonable given his health concerns, we have no evidence that the trial court has actual knowledge of relator's motion.

As a party seeking mandamus relief, relator has the burden of providing this court with a sufficient record to establish his right to relief. Walker, 827 S.W.2d at 837. The record does not establish relator's right to relief in this case. Accordingly, we deny relator's petition for writ of mandamus. We grant relator's motion for leave to file his petition in forma pauperis.

PER CURIAM

1. This proceeding arises out of Cause No. 04-01-0019-CVK filed in the 81st Judicial District Court, Karnes County, Texas.