1 John T. Boyd, Chi ef Justice (Ret.), Seventh Court o f Appeals , sitting by as sign ment. T EX
. G OV ’ T C ODE A NN . §75.0 02(a) (1) (Ve rnon S upp. 2 002). NO. 07-02-0480 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E NOVEM BER 21, 2002

______________________________ IN RE DARRICK M. KIZZ EE, Relator

_________________________________ ORIGINAL PROCE

EDING FOR WRI T OF MANDAMUS

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, SJ. 1 Pending before this court is the petition for writ of m andam us of Darrick M. K izzee (Kizzee ). Through it, Kizzee asks tha t we order t he Honorable John Board, District Judge, 181st Judicial District ( district c ourt), to rule upon his “Motion to Release Ev idence.” The latter purports to be a motion re questing th e distri ctcourt to order the Texas Departm ent of Criminal Justice (TDCJ) to release various records pertaining to Kizzee or his crim inal conviction. From the face of the doc ument s attached to the petition forwrit of mandam us, we see that Kizzee as ked for the records pursuant to the Texas Open Records Act , T EX . G OV . C ODE A NN . §552.001 et s eq. (Vernon 1994). We deny the petition for the following
reasons.2 Fil ing something with the d istrict clerk does not mean the trial court is aware of it . Nor is that cl erk’s

know ledge impute d to the trial cour

t. In re Chavez , 62 S.W .3d 225, 228 (Tex . App. — Amari llo 2001, ori g. proceeding). Thus, it was incumbent u pon Kizz ee to p rove that thetrial cour t received no tice. Id. Mer ely alleging th at so mething w as filed w ith the d istrict cler k is not enou gh. Id.

2 First, the petition fails to conform w ith the requisites of Texas Rul es of Appellate Proce dure 52.1, 52.2, and 52.3. And, that K izzee may be acting pro se or that he m ay be
a resident of a p enal institution does not relieve him from com plying with the rules of procedure. Foster

v. Will iams, 74 S.W.3d 200 (Tex . App. —Texarkana 2 002, pet . denied). Second, and tothe exten t that Kizzee actua lly complains about the failure by the TDCJ to com ply w ith h is op en r eco rdsreq ues t, t he a ppr opr iaterem edy

is t o init iatea s uit for writ of m andam us, T EX . G OV . C ODE A NN . §552.321(a), or on e for declaratory and injunctive relief. Id. at 552. 3215(b). His “M otion to Release E vidence” constitu tes neith er. Third, assum ing arguendo that the “Mot ion to Release Evidence” ma y be deem ed
a suit for ma ndamu s or declaratory relief and that citation was properly served up on those entitled to notice and citation, nothing of record indicates that the mo tion was brought to the attention o f the distri ct co urt. S imply put, before m andam us relief may issue, t he petitionermu st establish that the district court 1) had a lega l d uty to perform a nondiscretiona ryact, 2) was asked to perform the act, and 3) failed or refused to do so. In re Chavez , 62 S.W.3d 225, 228 (Tex . App. —Am arillo 2001, orig. proceed ing); O’Connor v. First Court of Appeals , 837 S.W.2d 94, 97 (Tex. 1992). To the extent that Kizze e com plains of the district court’s failure to rule upon his motion, application of the foregoing rule would necessa rily require hi m to illustrate that it was aware of the do cum ent. 2 The3

court cannot be faul ted for doi ng nothing if it was n ot aware of the n eed to act.

Fourth, and assum ing argue ndo tha t the m otion is brought to the attention of a d istri ct court, the latter has a duty to consider and rule upon it. In re Bates , 65 S.W.3d 133, 134-35 (Tex. A pp.—Am arillo 2001, orig. proc eeding); In re Rami rez , 994 S.W.2d 682, 683 (Tex . App.—San A ntonio 1998, orig. proceeding). This is so because the act of considering it is ministerial. In re Bates , 65 S.W .2d at 134-35; Safety-Kleen Corp. v. Ga rc ia , 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding), quoti ng O’Donni ley v. Golden , 860 S .W.2d 267 (Tex . App. —Tyler 199 3, orig. pr oceeding). However, the court has a reasonable tim e within which to act. Id. And, w hether that period lapsed is dependent upon the circums tances of each case. In re Bates , 65 S.W.2d at 135. In other words , no bright-line demarcates the boundaries of a reasonable time period. Id. Many indicia are influential, not the least

of w hich are the trial court’s actual know ledge of the mo tion, its overt refusal to act on sa me, the state of the court’s docket, and the existence of other j udicial and adm inistrative matters w hich must be addressed first. Id. So too m ust the trial cou rt ’s i nh er en t p owe r t o co nt ro l i ts own do cke t b e i nc lu de d i n t he mix. In re Bates , 65 S.W.2d at 135; see Ho v. Uni versity of Texas a t Arli

ngton , 984 S.W.2d 672, 694-695 (Tex. Ap p.—

Am aril lo 1998, pet. denied) (holding that a court has the inherent authority to cont rol its ow n do cke t). Sin ce t hat pow er isdiscretionary, Hoggett v. Brown , 971 S.W.2d 472, 495 (Tex. App.—H ouston [14 th Dist.] 1997, n o pet.), we m ust be wary of interfering with its exerci se without legitimate basis. And, since the party requesting manda mus

relief has the burden to provide us with a reco rd sufficient to establish his right4

to sam e, In re Bates , 65 S.W.2d at 135; Walker v. Packer

, 827 S .W.2d 833 (Tex . 1992), Kizzee had theoblig atio n topro videus w ith arec ord establis hing that a properly filed mot ion has awaited disposition for an unreasonable length of tim e. The rec ord bef

ore us m ere ly il lustrate s that Kizzee m ay have filed his “Motion to Release Evidenc e” on o r about October 17, 2002, that is, a bit m ore than a m onth ago. Yet, no other evidence purporting to t ouch upon the indicia discussed in the preceding paragraph appears of recor d. And, because we do not hold that the di strict court’ s failure to act w ithi n a mo nth upon a m otion being filed per se constitutes un reasonabl e delay, Kizzee failed to satisfy his burden of proof. Accordingly, the petition for writ of m andam us is denied.

Brian Quinn Justice Do not publish.