In Re: Anthony Wayne White--Appeal from 369th District Court of Anderson County
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NO. 12-10-00175-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
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IN RE: ANTHONY WAYNE WHITE,
RELATOR
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION
Relator Anthony Wayne White complains that the trial court has failed to rule on
his motion to reinstate his involuntarily dismissed lawsuit. He seeks a writ of mandamus
from this court requiring the trial court to set a date for hearing and ruling on the motion
to reinstate.
To obtain a writ of mandamus compelling the trial court to consider and rule on a
motion, a relator must establish that the trial court (1) had a legal duty to perform a
nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do so.
In re Molina, 94 S.W.3d 885, 886 (Tex. App.–San Antonio 2003, orig. proceeding).
Generally, a trial court has a nondiscretionary duty to consider and rule on a motion
within a reasonable time. In re Thomas, No. 12-05-00261-CV, 2005 WL 2155244, at *4
(Tex. App.–Tyler Sept. 7, 2005, orig. proceeding) (mem. op.).
Here, White alleges that he filed a document entitled ―Motion to Reinstate‖ in the
trial court. However, a motion to reinstate must sometimes be construed as a motion for
new trial. See Casso v. City of McAllen, No. 13-08-00618-CV, 2009 WL 781863, at *2
(Tex. App.—Corpus Christi Mar. 26, 2009, pet. denied) (holding that substance of
verified motion to reinstate filed by appellant was that of motion for new trial). A trial
court has no duty to rule on a motion for new trial. See TEX. R. CIV. P. 329b(c) (motion
for new trial not determined by written order signed within seventy-five days after
judgment signed to be considered overruled by operation of law).
Therefore, to
determine whether the trial court has a duty to rule on White’s motion, we must review
the substance of the motion. But White has not provided a copy of his motion. See TEX.
R. APP. P. 52.4(k)(1)(A) (requiring mandamus petition to be accompanied by appendix
that includes certified or sworn copy of any order complained of or any other document
showing the matter complained of).
Because we have not been furnished a copy of White’s motion, we cannot
determine whether he is entitled to mandamus relief. Accordingly, White’s petition for
writ of mandamus is denied.
BRIAN HOYLE__
Justice
Opinion delivered June 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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