1 That Jones act s in a pro se capaci ty doe s not relie ve him from com plying with th e rule s of ap pellate

proc edu re. Holt v. F. F. Ente rpri ses , 990 S. W.2d 756, 759 ( Tex. App. – Am arillo 1998, pe t. denied). NO. 07-06-0219-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B JUNE 7, 2006

______________________________ In re CED RIC A. JON ES, Relator

_________________________________ MEMORANDUM

OPINION

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Pending before the court is the petition of Cedric A. Jones for a writ of mandamus. Jones requests that we order the Hon. Patrick A. Pirtle, 251st Judi cia l Distri ct, Potter County, to “make a ruling on the motions therein filed on the default judgment." We de ny the appl ication for the re asons wh ich foll ow. First , rules o f procedure obligate one seeking mandamus relief to accompany his petition wit h an appendix. 1 T EX
. R. A PP
. P. 52.3(j). The latter must include, among other things, a "certified or sworn copy of . . . [the] document showing the matter com plained of." In this case, the document showing the matter complained of would be the motion allegedly filed requesting a default judgment. None was provided to us, however, via appendix or otherwis e. Thus, it canno t be said that Jone s compli ed with R ule 52.3 (j).2

Second, Jones fa iled to a ccompany his peti ti on with t he requisite filing fee or an affidavit illustrating his inability to pay the fee. See T EX
. R. A PP
. P. 20.1(b ). Third, a t r ial court cannot be found to have abused i ts discretion until the complainantestablishes that the court 1) had a le gal duty to pe rform a no n-discret ionary act, 2) was a sked to p erform the act, a nd 3) fai led or re fused to d o so. O'Connor v. First Court of Appeals , 837 S.W. 2d 94, 97 (Tex. 1992). To the extent that Jones complai ns of the trial court's failure to convene a hearing and rule upon his alleged motion, application of the foregoing rule would necessarily require him to il lustrate that the t rial cou rt was aware of the motion. Indeed, one can hardly be faulted for doing nothing if he wasnever aware of the ne ed to act. Here, nothing appears of record illustrating that the trial court was afforded or had notice of the motion . Nor doe s anythin g appear of record which would all ow one to reasonablyinfer that such notice was give n or knowledge was had. Admittedly, Jones stated in the bo dy of h is petition that "the motion for default judgment has been recieved [sic] and filed on Febuary [sic] 20' 2006.'” He further sta tes that h e “reciev ed [sic] a confirmation that the mo tion was filed and the court recieving [sic] the motion .” Yet, the id entity o f the enti ty with w hich he filed the instrume nt is unk nown. Th is is of import because the entit

y could h ave been either th e distric t clerk or the tri al court. T EX
. R. C IV
. P. 74 (stating that pleadings, papers and the like shall be filed with the clerk of the court or with the court itself if

permitted ). If fili ng occurr ed with the district clerk, we know of no rule which imputes the clerk's knowledge to the trial court. Thu s, itwould be incumbent upon
a ppellantto illu strate tha t the cle rk informe d the tria l court o f the moti on or tha t the tria l court otherwis e obtain ed knowl edge of i t. So, merely stating that something was "properly3

filed" is insufficient basis from which to reasonably i nfer that the trial court had notice of that something and the need toact on it. And, because the state of the record prevents u s from holding that the trial co urt was aware of the motion, we cannot say that the court abused its discr etion in alleged ly faili ng to act on same. Fourth, and assu ming argu endo tha t the moti on is bro ught t o the att ention of a districtcourt, the

latter ha s a duty to consider and ruleupon it. Ex parte Bates , 65 S.W.3d 133, 134-35 ( Tex. App .–Amaril lo 2001, orig. pro ceeding ); In re Ramirez , 994 S.W.2d 682, 683 (Tex. App.–San Antonio 1998, orig. proceedin g). This is so be cause the actof considering it is min isterial

. Ex parte Bates , 65 S.W.3 d at 134- 35; Safety-Kleen Corp. v. Gar cia , 945 S .W.2d 268 , 269 (Te x. App.–San Anto nio 1997 , orig. pr oceedin g), quoting O'Donniley

v. Golden , 860 S.W.2d 267 (Tex. App.–Tyler 1993 , orig. pro ceeding ). Howev er, the court has a reason able time within which to

act. Id. And, whether that period lapsed is dependent upon the circumstances of eac h case. Ex pa rte Bates , 65 S.W.3d at 135. In other words, n o bright line dem arcates th e bounda ries of areasonab le time p eriod. Id. Many indicia are influential, not the least of w hich are the trial court's actual knowledge of the motion, its overt refusal to act on same, the state of the court's docket, and the existence of other judicial and administrative matters which mu st be add ressed fi rst. Id

. So too mustthe trial court's inherent power to control it s own docket be included in the mix. Ex parte Bates , 65 S.W.3d at 135; see Ho v. University of Texas at Arlington, 984 S.W.2d 672, 694-695 (Tex. App.–Amarillo 1998, pet. denied) (holding that a court has the inherent authority to contro l its own docket). Since th at power is discreti onary, Hoggett v. Brown , 971 S.W.2d 47 2, 495 (T ex. App. –Houston [14th Dist.] 1997, no pet.), we must be wary of interfering with its

exercis e with ou t legitimate basis. And, since the party requesting4

mandamus relief has the burden to provide us with a record sufficient to establish his right to same, Ex parte Bates , 65 S.W.3d at 135; Walker v. Packer , 827 S.W. 2d 833 (T ex. 1992 ), Jones had the obligation to provide us with a record e stablishing that a properly filed motion has awaited disposition for an unreasonable length of time. The record before us merely illustrates that Jones m ay ha ve filed his "Motion for DefaultJudgment" on or about February 20, 2006, that is, a little more than three months ago. Yet, no other evidence touching upon the indicia discussed in the foregoing paragraph appearsof record

. And, because we do not ho ld that th e distric t court's failure to act within three months upon a motion being filed per se constitutes unreasonable delay, Jones fai led to sa tisfy his burden of proof. Accordin gly, the petition for writ of mandamu s is deni ed.

Brian Quinn Chief Justice