In Re: Zufar Fajr Yak-Yak Khufu a/k/a Norris Hicks--Appeal from 87th District Court of County

NO. 12-03-00156-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN RE: ZUFAR FAJR KHUFU

 
ORIGINAL PROCEEDING
MEMORANDUM OPINION

Relator Zufar Fajr Khufu ("Relator") seeks a writ of mandamus compelling the trial court to hold a hearing and to rule on various pending discovery motions. We deny the writ.

A trial court abuses its discretion where it (1) has a legal duty to perform a non-discretionary act, (2) is asked to perform the act, and (3) fails or refuses to do so. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding). When a motion is properly filed and pending before a trial court, the act of considering and ruling upon that motion is a ministerial act. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001, orig. proceeding). However, the trial court has a reasonable time within which to perform this duty. Barnes, 832 S.W.2d at 426.

What constitutes a reasonable time is dependent upon the circumstances of each case. Barnes, 832 S.W.2d at 426. In determining whether a specific length of time is reasonable, an appellate court may consider, inter alia, (1) the trial court's actual knowledge of the motion, (2) its overt refusal to act on the motion, (3) the state of the court's docket, (4) the existence of other judicial and administrative matters which must be addressed first, and (5) the trial court's inherent power to control its own docket. Chavez, 62 S.W.3d at 229. The earliest filing date for any of the pending motions is March 26, 2003. Therefore, none of the motions about which Relator complains had been filed for more than two months on May 27, 2003 when Relator filed his mandamus petition.

Relator has furnished no information that allows us to determine the reason for the trial court's failure to act. Without such information, we cannot determine whether the trial court has had a reasonable time to conduct a hearing and rule on Relator's motions. Relator emphasizes the urgency of the matter by pointing out that the underlying lawsuit is scheduled for trial on June 2, 2003 and his discovery is not complete. However, that may be resolved by Relator's filing a motion for continuance in compliance with Texas Rules of Civil Procedure 251 and 252. Consequently, we conclude that Relator has failed to show that he is entitled to mandamus relief. Accordingly, Relator's petition for writ of mandamus is denied.

Writ of mandamus denied.

 

SAM GRIFFITH

Justice

 

Opinion delivered May 30, 2003.

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

 
(PUBLISH)