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

NO. 12-07-00358-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: MICHAEL ANTHONY MOORE,

RELATOR ORIGINAL PROCEEDING

MEMORANDUM OPINION

In this original mandamus proceeding, Michael Anthony Moore complains that Janice Staples, District Clerk of Anderson County, Texas, has not sent him file marked copies of the motions he mailed to her on September 10, 2007. He further complains that the trial court has not yet ruled on his motions. We dismiss the petition for want of jurisdiction in part and deny in part.

District Clerk

A court of appeals has the authority to issue writs of mandamus against a judge of a district or county in the court of appeals district and all writs necessary to enforce its jurisdiction. Tex. Gov't Code Ann. 22.221 (Vernon 2004). In order for a district clerk to fall within our jurisdictional reach, it must be established that the issuance of the writ of mandamus is necessary to enforce our jurisdiction. See id.; In re Coronado, 980 S.W.2d 691, 692-93 (Tex. App. San Antonio 1998, orig. proceeding). Moore has not demonstrated that the exercise of our mandamus authority against Staples is appropriate to enforce our jurisdiction. Consequently, we have no authority to issue a writ of mandamus. See In re Moore, No. 12-07-00341-CV, 2007 WL 2713769, at *1 (Tex. App. Tyler Sept. 19, 2007, orig. proceeding).

Trial Court

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). Moore alleges that he mailed his motions to the district clerk on September 10, 2007, but makes no showing that the trial court has had a reasonable time to consider and rule on the motions. Nor does he show that he called the trial court's attention to the motions or requested that hearings be set to determine their merit. Therefore, Moore has failed to show that the trial court has abused its discretion by failing to rule on the motions. See In re Villareal, 96 S .W.3d 708, 710 (Tex. App. Amarillo 2003, orig. proceeding).

Conclusion

We are without jurisdiction to issue a writ of mandamus against the district clerk, and Moore has not shown any abuse of discretion by the trial court. Accordingly, the petition for writ of mandamus is dismissed for want of jurisdiction as to the district clerk and denied as to the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered October 11, 2007.

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

(PUBLISH)