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.