in Re Ivo Nabelek

IN THE TENTH COURT OF APPEALS No. 10-06-00241-CV In re Ivo Nabelek Original Proceeding MEMORANDUM Opinion ON REHEARING Relator Ivo Nabelek seeks a writ of mandamus, complaining that Respondent, the Honorable Kenneth H. Keeling, will not rule on a motion that has been pending in the underlying action since May 2005.[1] The underlying action is a civil rights suit brought by Nabelek, a pro se state prison inmate, against prison officials and employees concerning, at least in part, property of Nabelek that was confiscated by the defendants. In the underlying suit, Nabelek filed a “Motion For a Court Order To Direct the Defendants and TDCJ ID Not To Destroy Disciplinary Records and Other Evidence and Property Items Pending Discovery and Disposition of This Suit.” Nabelek has made several requests for the trial court to rule on this motion. We will grant mandamus relief if there has been an abuse of discretion and the relator has no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-38 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial judge has a reasonable time to perform the ministerial duty of considering and ruling on a motion properly filed and before the judge. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); In re Martinez Ramirez, 994 S.W.2d 682, 683-84 (Tex. App.—San Antonio 1998, orig. proceeding). Whether the judge has acted within a “reasonable” period of time depends on the circumstances of the case. See, e.g., Martinez Ramirez, 994 S.W.2d at 684 (18 months too long for trial court not to have ruled on plaintiff-inmate’s motion for default judgment). The Attorney General, who represents the defendants in the underlying action, notes that TDCJ is a state agency that is subject to the records-retention provisions of the Government Code (Tex. Gov’t Code Ann. § 441.187(b) (Vernon 2004)) and that this provision protects Nabelek’s records from destruction because he has filed the underlying action (which was filed in March 2005). The Attorney General’s response further states that Nabelek’s “records will not be destroyed.” Nabelek asserts in his motion for rehearing that, in addition to his disciplinary records, his pending motion in the trial court seeks an order preventing the destruction of his property that was confiscated. In a response to the motion for rehearing, the Attorney General maintains that the confiscated property was contraband—allegedly pornographic drawings, including child pornography and graphic depictions of children. Nabelek denies that the drawings are pornography. He describes them as art sketches and drawings “of some nudity in bodies of humans of all ages.” Nabelek asserts that the key issue in his suit is whether he had a constitutional right to possess the drawings. If they are destroyed as contraband, per prison policies, Nabelek asserts that he will not be able to prove that they are not contraband and that he had a constitutional right to possess them—because they will no longer be available for judicial review. We find In re Bonds, 57 S.W.3d 456 (Tex. App.—San Antonio 2001, orig. proceeding) particularly relevant and instructive. In that proceeding the relator, like Nabelek a pro se inmate, sought and obtained mandamus relief because the trial court had not timely ruled on his motion requesting the trial court to order that disciplinary records and a tape not be destroyed. Despite the real parties’ effort to preserve the evidence, the court of appeals aptly noted that the relator had no legal protection preventing the destruction of the tape in the absence of a court order. Id. at 457. Accordingly, the trial court was ordered to hear and rule on the request for a discovery order. The same result is warranted for Nabelek’s disciplinary records and tapes, logs, and other records.[2] See id. As for the drawings that appear to be the subject matter of the underlying action, Nabelek is also entitled to a ruling on his motion for an order not to destroy them.[3] We conditionally grant Nabelek’s petition for writ of mandamus. The writ will issue only upon certification to this court that Respondent has failed to rule upon Nabelek’s motion within 21 days of the date of this opinion. An agreed order with regard to Nabelek’s motion will satisfy the ruling requirement. See id. at 458. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissents with a note: For the reasons expressed in my earlier dissenting opinion, I would deny the petition for writ of mandamus. In re Nabelek, 200 S.W.3d 364 (Tex. App.—Waco 2006) (C.J. Gray – Dissenting Opinion to Order Requesting a Response to a Petition for Writ of Mandamus)) Petition granted and writ conditionally issued Opinion delivered and filed February 7, 2007 [OT06] [1] We originally denied Nabelek’s petition. In re Nabelek, 2006 WL 2884912 (Tex. App.—Waco Oct. 11, 2006, orig. proceeding). [2] We disagree with the Attorney General’s assertion that, if Nabelek’s documents are destroyed, a spoliation instruction would provide an adequate remedy. [3] A party lacks an adequate remedy by appeal when the trial court’s discovery error vitiates or severely compromises the party’s ability to present a viable claim. Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1994) (orig. proceeding).