NO. 07-02-0104-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D MARCH 6, 2 002

______________________________ IN RE SENA IDO REY,

Relator

_________________________________ ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

_______________________________ Before BOYD, C.J., QUINN and REAVIS, JJ. Pending before this court is the petition of Senaid o Rey for a writ of mandamus. Rey seeks such a writ against the “judge having jurisdiction over divorce su i ts in Potter Coun ty, Texas” and requests that we or

der that unnamed respo ndent to grant or dispose of his divorce. He further avers that he is enti tled to such r elief because the r

espondent has failed to act upon his petition for divorce, which p etition was allegedl y filed on August 28, 2001. We deny the applicati on for the follow ing reasons

. First, the applicati on fails to identify therespondent as r equired by

Rule 52.3(d) (2) of the Texas Rule s of Appellate Pr ocedure. Nor

are we able to divinethe identity of that court through deduct ion since ther e are sever al whic h have jurisdiction to adjudicate fam ily matters

. And, wit h out knowing who the re spondent is, w e cannot direct

it to act i n any part icula r way.2

Nor can we direct the l ower court to g rant

Rey’s p etit ion f or divo rce, assu ming we knew the identity

of that court. While our author ity encompass es the ability to direct a trial court to rule upon a matter, it does not i nclude the power to tell i t how to rule. O’Donni ley
v. Golden , 860 S.W.2d 267, 269 (Tex. App. – Tyl er 1993, no pet.) . Ordering the respondent to g rant the divorce woul d be tantamount to dir ecting it how to rul e. Third, the need to consi der and rule upo n a motion is not a discretion ary act. In re Bates , No. 07-01-0199- CV, 2 001 Tex . App. WL 513450, at *1, ___ S.W.3d ___, ___ (Amarillo, May

15, 2001, no pet. h.); In re Ram irez , 994 S.W.2d 682, 683 (Tex. App.-- San Antonio 1998, orig. proceeding) . Rather, w hen the motion is properly filed and pending before a trial court, the act of considering and resolving it is ministerial

. Safety-Kleen Corp.
v. Garcia , 945 S.W.2d 268, 269 (Tex. App.-- San Antonio 1997, or ig. proceed ing) (q uoting O’Donni ley v. Golden , 860 S.W.2d 267, 269-70 (Tex. App.- -Tyler 1993 , orig. proceeding). However, the court ha s a reasonable time within w hich to perform thi s duty. Id. ; Barnes v. State , 832 S.W .2d 424, 426 (Tex. App.--Housto n [1st Dist.] 1992, orig. proceeding). Addi tion ally, no bright- line demarcatesthe boundaries of a reasonable time period. Bates , 2001 WL 513450 at *1, at _ __. Its scope is dependent upo n a myriad of factors, notthe least of w hich is the t rial court ’s actual kn owledge of the motion or request, its overt refusal to act on same , the state of the cou rt’s docket, and the ex istence of other j udicial and administrati ve matters w hich must be addressed firs t. Id . So too must the t rial court’s inherent power tocontrol its own docket be factored intothe mix. See Ho v. Uni versity of Texas at Arlington , 984 S. W.2d 672, 69 4- 695 (Tex. App.- -Amarillo 1998, pet. denied) (holding that a court has the inherent aut hority

to control its own docket). Finally, because1 Indeed, nothi ng of re cord i ll ustra tes t hat t he person whom Rey seeks to div orce has been se rved with

cit ati on and sui t as per the di ctat es of the T ex as Ru les of C ivil P ro ce du re or s tatu te. A t m os t, R ey m er ely ass erts in h is “ ori ginal peti ti on for div orce” t hat he “ forwar d[ed] ” a copy of t he document to hi s purport ed wif e. To the ext ent t hat Reyhas not ef fectua ted ser

vice upon hi s wife, t he tr ial courthas no personal jur isdi cti on ove r her to gra nt an y divorc e. 3 itis the burden of the party r equesting mandamus relief to prove his entitlement to s ame, Bate s, 2001 WL 513450 at *1, at ___, Rey had the obligation to provide us with evidence of the foregoing indicia (or the like) against which we could test the reasonablene ss of the respondent’s s upposed delay. Here, howev er, we hav e no evidence of thenumber of other case s, motions, or issues pending on the trial cour t’s docket, t he number of cases, motions, or issues which have pended on its docket long er than that at bar, the number of cases, motions, or issues pending on its docket that lawfully may be entitled to pref erential settings, or the trial court’s schedule. W itho ut su ch evi den ce, a ny a t tempt to assess w hether the unknow n respondent unreasonably delayed in disposing of the divorce proceeding w ould be mere folly . Nor

can we say that th e mere passage of six mont hs fr

om the date on wh ich the divorce was initiated evinces unreasonable delay as a mat ter of law. Again, a tr ial court has great discretion ov er its doc ket. And, w hile it cannot opt to unreasonabl y delay hearing an action, no li tigant is entitled to a trial at w hatever ti me he may choose. 1 Accordingl y, the petit ion for wr it of mandamus is deni ed.

Per Curiam Do not publish

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