1 That Chav ez acts in a pro secapacity does not reli ev e him f rom com plying with t he rules of

appe llate proce dure. Holt v. F.F . Enterprises , 990 S.W .2d 756, 759 (Tex. App.–Am arill o 1998, pet. denied)
.

1 NO. 07-01-0368 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D SEPTE MBE R 14, 2001

______________________________ IN RE LAWRENCE TRINI DAD CHAV EZ, Relator

_________________________________ ORIGINAL PROCE

EDING FOR WRI T OF MANDAMUS

_______________________________ Before BOYD, C.J., and QUINN and REAVIS, JJ. Pending before the court is the pet ition of Lawrence Trinidad Chavez for a w rit of mandam us. Chavez requests that weorder the Hon. David R. Gleason, 47th Jud icia l District, Pott er Coun ty, to“sched ule and hold ahearing on the prop erly filed M otion for a Free Cop y of

theTria l/A ppe llateRecord fro m cau se n o [s ic] 944 5-A in t he 47th Distri ct Co ur t . . . ” W e d en y th e a pp li ca ti on fo r t he re as on s whi ch fo ll ow. Firs t, r ulesof p roc edu re o bliga te o ne s eek ing m and am us r elief to a cco m pan y his petition wit h a n a pp en di x. 1 T EX . R. A PP . P R OC
. 52.3(j). The latter must include, among other things, a “certified or sworn cop y of . . . [the] docum ent sho wing the ma tter2 In an apparent attem pt to av oid the requirem ent of Rul e 52.3(j), Chav ez alleges that he could not

make a copy of his

motion sin ce the “institu tion” in w hich he now res ides “does not pr ovide copying ser

vices.” Implic it in this assertion is the representation that he possessesa d ocu ment wh ich h e w

ou ld copy but for the “institu tion[’s

]” refusa l to prov ide him access to a photocopy machine. W hy he deigned to withhold f rom us the copy h e doe s po ss ess wen t unexplain ed, ho

wever. Similarlyunaddressed is the possibili ty of r e-creating a copy through other m eans, such as requesting a third-party to copy the it em v ia a photocopy m achine found outside the walls ofthe “instit ution” or re-creat ing a copy via typewrite r. Until information is given to us which explai ns why thes e and like reasonable alt ernativ es are impract ical or unav ailabl e, we ca nnot excuse him from complying with Ru le 52.3( j). 2 com plained of.” In this case, the docum ent show ing the mat ter com plained of would be the mo tion allegedly fil ed and the request for a f ree copy of the trial and appellate record. None was provided to us, how eve r, v ia ap pen dix

or otherwise. Thus, it cannot be said that Chavez com plied with the rules which he now seeks to enforce. 2 Second, Chavez fail ed to acc ompa ny his petition with the requisite filing fee. Rather, he atte m pte d toavo id pa ying thefeeby ten der ing a n af fida vit pur por

ted ly establishing his status as an indig ent . Th e af fida vit, how

eve r, cons ists

of l ittlemo re than the conclus ory sta tem ent tha t “I am indigent and unable topay, o r give sec urity the refore [sic] any filing fees or

costs re late d to the attach ed peti tion . . . ” As can be seen, n owh ere does this affidavit address: 1) the am ount of his incom e, if any, 2) the inc ome of his spouse, if any, 3) the ava ilab ili ty of other sources ofmoney, if any, 4) the exten t of the real and personal property he ow ns, if any, 5) the cash he possesses, if any, 6) the extent of his ass ets , if any , 7)theex ten t of his debts, if a ny, and 8) t he e xtent of h is m ont hly expenses, if any. These ar e indic ia w hich m ust

be d isc uss ed v ia affidavi t when one seeks to invoke this court’s j urisdiction through a notice of appeal. T EX . R. A PP . P ROC . 20.1(b ). We see no reason w hy th ey should be ignored when oneattem pts to invoke our jurisdiction through a petition for writ of m andam us. In sho rt , whi le we mus t r ul e u po n mat te rs pr op er ly be fo re us, we need not do so at3

the expense of the State of Texas without a proper sh owing of indig enc e. A nd, sim ply stating that “I am indigent” is not such a proper showing, as e vinced by the enactm ent of Rule 20.1 (b). Third, a trial court cannot be found to have abus ed its discreti on unt il the
com plainant establishes thatthe co urt 1) ha d a legal dut y to pe rforma non-disc retionary act, 2) was asked to perform the act, and 3) failed or refused to do so. O’Connor v. First Court of Appeals , 837 S.W.2d 94, 97 (T ex. 1992). To the ex tent that Chavez

com plains of the trial court’s failure to convene a hearing and rule upon his alleged motion, application of the foregoing rule would necess arily require him to illustrate that the trial court was aw are of them otio n. I nde ed, onecan har dly be faulted for doing nothing if he
were never aw

are of the need to act. Here, nothing a ppearsof reco rd illustrating t hat thetrial court was af forded or had notice of the m otion. Nor does anything appear of record which w ould allow one to reasonably infer that such notice w as given or know ledge was had. Admittedly, Chavez stated in the body of his petition that he “properly filed” the mot ion. Yet, the identity of the entity with w hich he “pr ope rly f iled” theinst rum ent

is u nkn ow n. T his i s of import because the entity could have been either the district clerk or the trial court. T EX . R. C IV . P ROC
. 74 (stating thatpleadi ngs, papers and the like shall be filed with the clerk of the court or w ith the court itself if per m itte d). If filin g oc cur red w ith t he d istr ict cler k, w e kn ow of n o ru le which imputes the clerk’s knowledge to the trial court. Thus, it would be incum bentupon appellant to illustratethat t he clerk inf orm ed the t rial court

of the mo tion or that the trial court oth erw ise o bta ined know ledg e of it. So , m ere ly s tat ing t hat som eth ing w

as “ pro per ly4

filed ” is i nsu ffic ient

bas is fromwhic h to reas onably infer that t he trial cour

thad notice of that som ething and the need to act on it. And, because t he state of the record prevents
us from holding that the trial court was aw are of the m otion, we cannot say th at the court abused its discretion in allegedly fail ing to act on sam e. Fourth, adm ittedly, the need to consider and rule u pon a m otion is not a discretiona ryact. In re Bates , No. 07-01-0199-CV, 2001 Tex. A pp. W L 513450 , at *1 (Am arillo, May 15, 2001 , no pet. h. ); In re Rami rez , 994 S.W.2d 682, 683 (Tex. App. –San An ton io 1998, orig. proceeding). Rather, when the mot ion is properly filed and pending before a trial court, the act of considering a nd resolving it is ministerial. Safety-Kl een Corp. v. G arcia , 945 S.W .2d 268 , 269 (T ex. App.–Sa n Ant onio 1997, orig. proceeding) (quoting O’Donni

ley v. G olden , 860 S.W.2d 267, 269-70 (Tex. App.–Tyler 1993, orig. proceed ing)). Ho w eve r, t he cour t ha s a rea son able time within which to perform this duty. Id. ; Barnes v. S tate , 832 S.W.2d 424, 426 (Tex. App.– Houston [1st D ist.] 1992, orig. proceed ing). An d, w het her suc h a p erio d ha s lap sed is dependent upon the circum stances of each case. Barnes v. State , 832 S.W.2d at 426. Moreo ver, no bright-line dem arc ate s th e bo und arie s of a re aso nab le time period. Bates , 2001 WL 513450, at * 1. I ts s cop e is dependent upon a m yriad of criteria, not the least of which is the trial court’s ac tual knowledge of the m otion, its overt refusal to act on
sam e, the state of the court’s docket, and the ex istence of other j udicial and administrati ve
m atterswhich m ust be addressed first. Id. So too m ust the trial court’s inherent power to control its own docket be factored into the m ix. See Ho v. U niversi ty of Texas

at Arli ngton , 984 S.W.2d 672, 694-695 (Tex. App.–A marillo 1998, pet. de nied) (holding t hat a court has5

the inherent authorityto con tr ol it s own docket). Fin ally, because it is the burden of the partyrequesting m andam us relief to p rove h is entitlement to sam e, Bates , 2001 WL 513450, at * 1, C hav ez h ad t he o bli gation to provide us with evidence of t he foregoing indi ci a (or

the li ke) again st which we could test the reasona bleness of the court’s supposed delay. Here, however, we have no evidence of the com plexity of the m otion i n questi on (since we lack a copy of the m otion), the num ber of other cases, m otions, or issues pending on the trial court’s docket, the number of cases, motions, or i ssues which have pended on its docket l onger than that at bar, the number of ca se s, m otions, or issues pend ing on its docket that law fully may be ent itled to preferential settings, or the trial court’s schedule. Wi thout such evidence, any attem ptto assess whether Judge Gle ason’s court acted unreasonably in failing to address the m ot ion within th e two m onths it has sup pos edly

pended, would be mere f olly. Again, a trial court has great discretion over its docket. An d, w hile it cannot opt to forever avoid hearing a m otion, no litigant is entitl ed to a hearing at whatever time hema y choose. For the reasons stated above, w e denythe petition for ma ndamu s without prej udice.

Brian Quinn Justice Publish.