In re Isidro Martinez Ramirez--Appeal from 150th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00746-CV
IN RE Isidro Martinez RAMIREZ
Original Mandamus Proceeding (1)

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 15, 2004

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

On October 18, 2004, Relator Isidro Martinez Ramirez filed a petition for writ of mandamus, requesting that we order the trial court to rule on his motion to compel. Because the trial court has failed to rule upon Ramirez's motion, we conditionally grant the petition for writ of mandamus.

Background

On November 25, 1996, Isidro Martinez Ramirez, an inmate, filed suit against his ex-girlfriend, Angela Orozco, in County Court at Law No. 2, Bexar County, Texas. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.--San Antonio 1998, orig. proceeding). In his original petition, Ramirez alleged that Orozco, after learning that Ramirez had been arrested and jailed, entered his apartment and took over $4,000 worth of his personal property. Id. When the trial court failed to rule on his motion for default judgment, he filed a petition for writ of mandamus in this court (04-98-00625-CV). Id. On September 16, 1998, we conditionally granted his writ, ordering the trial court to consider Ramirez's motion. Id. at 684.

Ramirez has now filed another petition for writ of mandamus. According to Ramirez, after we granted a conditional writ, the Honorable Paul Canales entered a default judgment, awarding him $4,262.05 in damages. Ramirez then filed an "Independent Action Under the Texas Turnover Act" to collect on the judgment in Bee County District Court. (2) When Ramirez learned that the judgment debtor, Orozco, had returned to Bexar County, he sought a venue change to Bexar County. The Bee County District Court granted his motion to change venue, and the case was transferred to Bexar County.

Ramirez then served deposition upon written questions on Joyce Stevens, an agent for the Texas Department of Public Safety, seeking information about the judgment debtor and her common-law spouse. The Texas Department of Public Safety ("TDPS"), not a party to the action, filed an objection to the subpoena. Ramirez then filed a motion to compel and attached a proposed order. In response, on July 28, 2004, a staff attorney for the Bexar County Civil District Courts, wrote Ramirez a letter stating the following:

Please be advised that this office has received your correspondence regarding the above referenced matter. Your Order Granting Judgment Creditor's Motion to Compel has been placed in the file unsigned. Currently this matter is pending in the Texas Supreme Court, (3) and as such, the District Court does not have jurisdiction. Furthermore, you have not accomplished service on the respondent.

Should you have any further questions or concerns regarding this matter, please feel free to direct correspondence to this office. I will respond as soon as is practical.

On August 27, 2004, Ramirez responded to the staff attorney's letter, demanding that the trial court take action on his motion to compel. Ramirez received no response. He then filed this petition for writ of mandamus.

Standard of Review

Mandamus is an extraordinary remedy, and it will lie only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).Discussion
Ramirez argues that the trial court abused its discretion in failing to rule on his motion to compel. A trial court is required to consider and rule upon a motion within a reasonable time. Ramirez, 994 S.W.2d at 683. "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) (citation omitted); see also Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding) (holding that trial court abused its discretion by refusing to conduct hearing and render decision on motion).

Here, a staff attorney for the district courts stated in her letter to Ramirez that the motion was brought to the attention of the court but that the court has no plans to take any action on Ramirez's motion. Four months have passed without any action by the trial court.

The staff attorney who wrote the letter to Ramirez has filed a response on behalf of the trial court. According to the trial court, it did not abuse its discretion in failing to rule upon Ramirez's motion because it does not have jurisdiction over Ramirez's suit. In his petition for writ of mandamus, Ramirez also discusses whether the trial court has jurisdiction over his turnover action. However, these arguments about jurisdiction go to the merits of Ramirez's suit. In this original proceeding, we can consider only whether the trial court has failed to perform its ministerial act of ruling on Ramirez's motion, not the merits of the underlying suit. If the trial court does not have jurisdiction (as it claims in its response), then Ramirez's motion should be dismissed for lack of jurisdiction (and one would think the underlying lawsuit would also be dismissed for lack of jurisdiction). If, however, the trial court does have jurisdiction, then it should determine whether the motion should be granted or denied. (4) We cannot, however, direct the trial court on what ruling it should enter. See Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 105 (Tex. 1962); Ramirez, 994 S.W.2d at 684. The trial court must, however, perform its ministerial act by ruling on the motion.

Conclusion

Because the trial court has failed to rule upon Ramirez's motion to compel, we conditionally grant Ramirez's petition for writ of mandamus and direct respondent to consider and rule upon Ramirez's motion within twenty days. Only if the Honorable Janet P. Littlejohn fails to comply will we issue the writ.

Karen Angelini, Justice

1. This proceeding arises out of Cause No. 2004-CI-05797, styled Isidro Martinez Ramirez v. Angela Menjares Orozco, pending in the 150th Judicial District Court, Bexar County, Texas, the Honorable Janet P. Littlejohn presiding.

2. Ramirez is currently incarcerated in Bee County.

3. The staff attorney is referring to yet another petition for writ of mandamus filed in our court which was denied by us on February 27, 2002. On July 16, 2004, the supreme court denied Ramirez's petition for writ of mandamus. Thus, the staff attorney was mistaken in stating that the petition was still pending at the time of her letter.

4. In its response, the trial court also complains of Ramirez's failure to properly serve the Texas Department of Public Safety. This alleged failure by Ramirez would be a reason to deny his motion, not a reason to wholly fail to rule upon the motion.