In Re: Kim Wayne Burden--Appeal from of County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00143-CV
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IN RE:
KIM WAYNE BURDEN
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

Kim Wayne Burden petitions this Court for a writ of mandamus because the Honorable William Porter, 276th Judicial District Judge of Camp County, "has abused his dicretion [sic] in refusing to address and correct the issues" presented in Burden's "Motion for Expungement of Records." (1) Burden submits, with his petition for writ of mandamus, correspondence from the district clerk stating that Burden's motion had been filed, that Judge Porter had "looked at the Motion," and that the judge "stated that he would not be doing anything with this." Burden asks us to "remand [the motion] back to the trial ct, [for] reconsideration and review on the merits of the motion so-as to allow the petitioner access to courts and a[n] honorable, fair, ethical, result . . . ." Remand is a remedy unique to appeals, and has no place in a mandamus proceeding. Even though a pro se litigant is obligated to comport with the rules of procedure just as one represented by an attorney is required to comply with them (2) we nonetheless construe Burden's pro se petition for writ of mandamus with patience and liberality. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding). Applying that liberality, we note two implied demands in Burden's petition: (1) to compel the court to rule on Burden's motion, and (2) to compel the trial court to grant Burden's motion.

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

We have the power to compel a trial court to consider and rule on a motion brought to the court's attention within a reasonable amount of time. In re Bonds, 57 S.W.3d 456, 457 (Tex. App.--San Antonio 2001, orig. proceeding); Barnes, 832 S.W.2d at 426; Kissam v. Williamson, 545 S.W.2d 265, 266-67 (Tex. App.--Tyler 1976, 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." Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.--San Antonio 1997, orig. proceeding). But, while we have jurisdiction to direct the trial court to exercise its discretion in some manner, we may not tell the court what judgment it should enter. In re Tasby, 40 S.W.3d 190, 191 (Tex. App.--Texarkana 2001, orig. proceeding); Cooke v. Millard, 854 S.W.2d 134, 135 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding). Thus, Burden has no right to mandamus relief to (as he requests) "correct the issues" through compelling the expunction of his records.

As for Burden's complaint that the trial court refused to address his motion, a "party's right to mandamus relief generally requires a predicate request for some action and a refusal of that request." In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999). While the mandamus record includes a statement by the clerk that the court would not be doing anything on the motion, Burden presents no indication that he ever presented his motion to the court, requested a hearing, or requested the court rule on the motion. Burden essentially asks this Court to order what he himself has not requested. This is not one of those rare cases when the presenting of the motion would be futile. Id. at 446 (finding codefendant's expressly denied request sufficient). On the record presented, we cannot say that Burden has established his right to a writ of mandamus to compel the trial court to hear his motion.

The petition for writ of mandamus is denied.

 

Bailey C. Moseley

Justice

 

Date Submitted: December 6, 2007

Date Decided: December 7, 2007

1. The underlying motion seeks to have the court remove references to weapons, injury to persons, or violence from Texas Department of Criminal Justice-Institutional Division records, Texas Parole Board records, and any other records relating to underlying cause number 96-6608-CR.

2. Holt v. F.F. Enters., 990 S.W.2d 756, 759 (Tex. App.--Amarillo 1998, pet. denied).