in Re Artis Charles Harrell

Opinion issued January 26, 2012 In The Court of Appeals For The First District of Texas ———————————— NO. 01-11-00760-CV ——————————— IN re ARTIS CHARLES HARRELL, Relator Original Proceeding on Petition for Writ of Mandamus MEMORANDUM OPINION Relator, Artis Charles Harrell, who is incarcerated, has filed, pro se, a petition for writ of mandamus, challenging the trial court’s failure to rule on his pending motions, including his motions to set his civil case for trial.[1] In his sole issue, Harrell contends that the trial court has abused its discretion in not responding to his requests for a jury trial and ruling on other pending motions. We grant the portion of the petition for writ of mandamus pertaining to Harrell’s request for a trial setting. Background In his petition for writ of mandamus, Harrell represents that he filed his original petition[2] in the underlying court on January 5, 2006. According to Harrell, in his petition, he alleged that real party in interest, Branch Brinson, unlawfully entered his premises with the intent to commit theft. As reflected in the trial court’s original docket control order, Harrell’s case was assigned a 2006 cause number and the trial court originally set it for trial on November 26, 2007. On November 7, 2007, the trial court sent to Harrell, who was incarcerated, a notice that his case had been set for docket call on November 19, 2007, his failure to appear would be “grounds for dismissal for want of prosecution,” and his case remained set for trial on November 26, 2007. Harrell’s case did not proceed to trial, and the trial court did not dismiss it for want of prosecution. On March 19, 2009, the trial court sent to Harrell, who remained incarcerated, a notice that his case was set for docket call on April 9, 2009 and trial on April 13, 2009. The notice reminded Harrell that his failure to appear would be “grounds for dismissal for want of prosecution.” Again, Harrell’s case did not proceed to trial. Nor was it dismissed for want of prosecution. On September 18, 2009, Harrell sent to the trial court a letter asking for the “current trial docket sheet.” The record contains a notation that, on September 30, 2009, Harrell was notified that his case was not set for trial. On August 24, 2010, Harrell sent to the trial court another letter asking for an explanation as to why his case had been “removed from the trial docket without written notice.” Harrell requested that the trial court rule on all his “pending motions” “up to and including [his] request for trial.” Harrell then listed a number of motions that he asserted the trial court had not yet considered. None of these other motions are contained in the mandamus record. There is no indication that the trial court responded to Harrell’s request for a ruling on his motion for a trial setting or otherwise set the case for trial or any dispositive hearing. On June 15, 2011, Harrell sent to the trial court another letter, “asking to be placed back on the trial docket” and to “set a trial date.” Harrell further requested a ruling “on all pending motions.” Finally, Harrell asked the trial court to issue a bench warrant so that he could appear for the “final hearing” or trial or, alternatively, to “hold a hearing by telephone conference.” There is no indication that the trial court responded to Harrell’s requests or motions. It is undisputed that Harrell’s civil case remains active, has not been dismissed, and continues to remain on the trial court’s docket approximately six years after its filing.[3] Standard of Review Mandamus is an extraordinary remedy, which is available only when (1) a trial court clearly abuses its discretion and (2) there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). With respect to a trial court’s determination of legal principles, “a trial court has no ‘discretion’ in determining what the law is or applying the law to facts.” In re Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d at 840). Trial Setting In his sole issue, Harrell argues that the trial court has abused its discretion because it has refused his requests and motions to set his civil case for trial and to rule on other pending motions, including his request for a bench warrant.[4] Motions for Trial Setting A court of appeals may not prescribe the manner in which a trial court exercises its discretion, but it may, by mandamus, require a trial court to exercise its discretion in some manner. Cooke v. Millard, 854 S.W.2d 134, 135 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); Jones v. Smith, 470 S.W.2d 305, 307 (Tex. Civ. App.—Houston [1st Dist.] 1971, orig. proceeding). A trial court may not arbitrarily halt proceedings in a pending case, and mandamus will lie to compel a trial court to entertain and rule on motions pending before it. Cooke, 854 S.W.2d at 135; Greenberg, Benson, Fisk & Fielder, P.C. v. Howell, 685 S.W.2d 694, 695 (Tex. App.—Dallas 1984, orig. proceeding). A trial court is required to consider and rule upon a motion within a reasonable time. In re Martinez Ramirez, 994 S.W.2d 682, 683–84 (Tex. App.—San Antonio 1998, orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265, 266–67 (Tex. Civ. App.—Tyler 1976, orig. proceeding). If a motion is properly filed and pending before a trial court, the act of considering and ruling upon that motion is ministerial, and mandamus may issue to compel the trial court to act. In re Martinez Ramirez, 994 S.W.2d at 683–84. Moreover, although courts of appeals do not have the power to control the character of a judgment entered by a trial court, courts of appeals may compel a trial court to proceed to trial and judgment in a case. Cooke, 854 S.W.2d at 135; see also In re Martinez Ramirez, 994 S.W.2d at 684 (stating that while courts of appeals have jurisdiction to direct trial court to proceed to judgment, it may not tell trial court what judgment it should enter). Harrell has attached to his petition copies of two letters, addressed to the trial court and respectively dated August 24, 2010 and June 25, 2011, seeking a trial setting of his civil case. It is undisputed that the trial court has not set Harrell’s case for trial or otherwise disposed of the case. Although the trial court has previously sent to Harrell multiple notices of possible dismissal for want of prosecution, the record indicates that Harrell’s case remains active. Harrell has demonstrated that he has sought a trial date of his civil case, which was filed in 2006, for approximately sixteen months, he has twice received notices of possible dismissal of his case for his failure to personally appear at docket call before his trial settings, the trial court has since removed his case from the trial docket,[5] and Harrell is receiving no response from the trial court despite multiple inquiries. We conclude that, under these circumstances, mandamus is appropriate as a means of compelling the trial court to exercise its discretion, rule upon Harrell’s motions for a trial setting, and set his case for trial in order to proceed to a final judgment in the case. See In re Martinez Ramirez, 994 S.W.2d at 684. Accordingly, we hold that the trial court has abused its discretion in not, within a reasonable time, considering and ruling upon Harrell’s multiple motions for a trial setting. We sustain the portion of Harrell’s issue pertaining to his requests for a trial setting. Bench Warrant Although Harrell is incarcerated and appears pro se, which likely complicates the resolution of his civil case, it is “well-established that litigants cannot be denied access to the courts simply because they are inmates.” In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) (citing Hudson v. Palmer, 468 U.S. 517, 523, 104 S. Ct. 3194, 3198 (1984)); In re Martinez Ramirez, 994 S.W.2d at 684. However, a litigant who is incarcerated does not have an absolute right to appear in person in every court proceeding. In re Z.L.T., 124 S.W.3d at 165. Rather, an inmate’s right of access to the courts must be weighed against the protection of our correctional system’s integrity. Id. A court, when deciding whether to grant an inmate’s request for a bench warrant, may consider a variety of factors, including “the cost and inconvenience of transporting the prisoner to the courtroom; the security risk the prisoner presents to the court and public; whether the prisoner’s claims are substantial; whether the matter’s resolution can reasonably be delayed until the prisoner’s release; whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means; whether the prisoner’s presence is important in judging his demeanor and credibility; whether the trial is to the court or a jury; and the prisoner’s probability of success on the merits.” Id. An inmate seeking a bench warrant must justify the need for his presence. In re D.S., 333 S.W.3d 379, 387 (Tex. App.—Amarillo 2011, no pet.). If a court determines that a pro se inmate in a civil suit need not appear personally, it should instead allow the inmate to appear by telephone, affidavit, or deposition. Id.; see also Brown v. Foster, No. 01-04-00482-CV, 2005 WL 1705045, at *1 (Tex. App.—Houston [1st Dist.] July 21, 2005, no pet.) (mem. op.). To the extent that Harrell is presenting a complaint concerning the lack of a bench warrant, he has failed to present any factual information demonstrating why his interest in appearing at a trial, if one is ultimately set, outweighs the impact on the correctional system. See In re Z.L.T., 124 S.W.3d at 165–66. He has not demonstrated that the trial court has abused its discretion in refusing to grant his request for a bench warrant at this point in the proceedings. Accordingly, we hold that the trial court has not abused its discretion in not granting Harrell a bench warrant at this point in the proceedings. We overrule the portion of Harrell’s issue pertaining to his request for a bench warrant and pending motions other than his request for a trial setting. Conclusion We conditionally grant the petition for writ of mandamus in regard to the complaint concerning the trial setting, and we direct the trial court to consider and rule upon Harrell’s motions seeking a trial setting and set the case for trial in order to proceed to judgment. See In re Martinez Ramirez, 994 S.W.2d at 684 (granting inmate mandamus relief and directing trial court to consider inmate’s motion for default judgment and proceed to judgment in case). We grant this portion of Harrell’s petition so that, whatever the trial court’s ruling, the case can “begin again the orderly process to eventual trial and judgment.” See Cooke, 854 S.W.2d at 135–36. The writ will issue only if the trial court fails to comply. Terry Jennings Justice Panel consists of Justices Jennings, Massengale, and Huddle. [1] The underlying case is Harrell v. Brinson, No. 2006-02867, in the 189th District Court of Harris County, Texas, the Honorable William R. Burke presiding. [2] Harrell has not included in the mandamus record a copy of the petition. Nevertheless, it is undisputed that he filed his civil lawsuit in 2006 and it remains pending in the underlying court. [3] We requested a response from Brinson, but he has not filed one. The trial court, in a September 28, 2011 letter filed in this Court, stated that Harrell’s case had not been set for trial and, if the case was not resolved, it would “arrange to have it tried.” It also noted that it had no “intention to bench warrant” Harrell to a trial. This Court has received no further communication that the case has been tried or disposed. [4] The focus of Harrell’s petition concerns the lack of a trial setting. The record presented by Harrell does not contain copies of the numerous other pending motions that Harrell contends are outstanding, except for a request for a bench warrant contained within in his letter seeking a trial setting. Because Harrell has not included any of these other motions in the record, and because he does not specifically complain about these other motions, we do not address any complaints concerning these motions. See Tex. R. App. P. 52.7(a) (requiring relator to present record upon which relief by mandamus may be granted); In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) (“In general, our rules place the burden on litigants to identify with sufficient specificity the grounds for a ruling they seek. . . . A litigant’s status as an inmate does not alter that burden.). We, do, however, address the request for a bench warrant, as Harrell has specifically identified that request and has included record documents supporting this request. [5] By its letter to this Court, the trial court has acknowledged that it is aware that Harrell’s case remains pending before it. We note that, despite Harrell’s requests for his case to be placed on the trial docket, the record before us indicates that there is currently no trial date set. To the extent the record before us accurately reflects this fact, we note that the Rules of the Civil Trial Division of the District Courts of Harris County provide that “[c]ases shall be set for trial for a date certain.” Harris County (Tex.) Civ. Dist. Ct. Loc. R. 3.4.2.