In Re: Michael Anthony Moore and Michael James Newsome--Appeal from 369th District Court of Anderson County

NO. 12-08-00025-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: MICHAEL ANTHONY MOORE

AND MICHAEL JAMES NEWSOME, ORIGINAL PROCEEDING

RELATORS

MEMORANDUM OPINION

Michael Anthony Moore and Michael James Newsome seek a writ of mandamus complaining of the district clerk of Anderson County, Texas, the trial court, and a former regional presiding judge.1 We dismiss the petition for lack of jurisdiction in part and deny it in part.

District Clerk

Moore and Newsome complain that the district clerk has failed to issue service in a suit they filed in Anderson County. When the issuance of citation is properly requested, the duty to issue citation rests upon the district clerk. See Tex. R. Civ. P. 99. Service by registered or certified mail and citation by publication must, if requested, be made by the clerk of the court in which the case is pending. Tex. R. Civ. P. 103. However, we do not have jurisdiction to issue a writ of mandamus against a district clerk unless the writ is necessary to enforce this court's jurisdiction. SeeTex. Gov't Code Ann. 22.221 (Vernon 2004); In re Johnson, 12-06-00018-CV, 2006 WL 176927, at *1 (Tex. App.-Tyler Jan.25, 2006, orig. proceeding) (mem. op.). Moore and Newsome allege that they have requested the district clerk to issue citation in their lawsuit and serve as they have directed. But they have not alleged or demonstrated that a writ of mandamus directed to the district clerk is necessary to enforce this court's jurisdiction. Therefore, we are without jurisdiction to grant mandamus relief as to the district clerk.

Trial Court

Moore and Newsome next allege that they have filed motions in their lawsuit and the trial court has failed to rule on the motions within a reasonable time. Courts of appeals have the power to compel a trial court to rule on pending motions. In re Ramirez, 994 S.W.2d 682, 684 (Tex. App. San Antonio 1998, orig. proceeding). Before mandamus may issue to require a trial court to rule on a motion, the relator must establish that the court was asked to perform the act and failed or refused to do so within a reasonable time. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App. San Antonio 1997, orig. proceeding).

Although Moore and Newsome have alleged that they have called the motions to the trial court s attention, they have not furnished a record as required by Texas Rule of Appellate Procedure 52.7 and therefore have provided no documentation showing what motions they filed, when they filed them, or that they have called the motions to the trial court s attention. Nor can we determine that the trial court has had a reasonable time within which to rule on any such motions, but has failed or refused to do so. Therefore, we cannot conclude that Moore and Newsome have shown any abuse of discretion by the trial court. See In re Villareal, 96 S.W.3d 708, 710 (Tex. App. Amarillo 2003, orig. proceeding).

Regional Presiding Judge

Moore and Newsome allege that they have filed a motion to recuse the respondent trial judge and requested the presiding judge of the region to set a hearing on the motion. They further allege that no hearing has been set and that a reasonable time has passed. Because the named presiding judge no longer serves in that capacity, we will construe Moore and Newsome s complaint as relating to his successor in office. This court may issue a writ of mandamus against a (1) judge of a district or county court in the court of appeals district or (2) a judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district. Tex. Gov t Code Ann. 22.221. The statute contains no specific grant of authority to the courts of appeals permitting them to issue a writ of mandamus against a regional presiding judge. See id; see alsoIn re Hettler, 110 S.W.3d 152, 155 (Tex. App. Amarillo 2003, orig. proceeding [mand. denied]). Therefore, we are without jurisdiction to grant mandamus relief as to the presiding judge.

Disposition

The portions of Moore and Newsome s petition seeking a writ of mandamus directed to the district clerk and to the regional presiding judge are dismissed for want of jurisdiction. The portion seeking a writ of mandamus directed to the trial court is denied.

JAMES T. WORTHEN

Chief Justice

Opinion delivered January 23, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 The respondents are Janice Staples, Anderson County District Clerk; the Honorable Bascom W. Bentley, III, Judge of the 369th Judicial District Court of Anderson County; and the Honorable Pat McDowell, former presiding judge of the First Administrative Judicial Region.