In Re Matthew Lee Flowers, Relator v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00268-CR

IN RE MATTHEW LEE FLOWERS, RELATOR

ORIGINAL PROCEEDING

September 17, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Pending before the Court is the pro se petition for writ of mandamus filed by relator

Matthew Lee Flowers. Through it, he seeks a writ of mandamus directing the Honorable

Steven Emmert, presiding judge of the 31st District Court, to rule on relator’s “Petition for

Expunction of [A]rrest.” We deny his petition for the following reasons.

First, the person filing the petition must certify that he reviewed the document and

concluded that every factual allegation therein is supported by competent evidence

included in the appendix or record. TEX. R. APP. P. 52.3(j). Relator omitted such

certification from his petition.

Second, in In re Chavez, we held that a trial court cannot be found to have abused

its discretion for purposes of mandamus until the complainant establishes that it 1) had a
legal duty to perform a non-discretionary act, 2) was asked to perform the act, and 3)

failed or refused to do so. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001,

orig. proceeding). The need to consider and rule upon a motion is not a discretionary act.

Id. Rather, when the motion is properly filed and the court is aware of it, the act of

considering and resolving it is ministerial. Id.

However, the trial court has a reasonable time within which to perform. Id.

Whether such a period lapsed without action depends upon the circumstances of each

case. Id. Moreover, no bright line demarcates the boundaries of a reasonable period.

Id. Its borders depend upon a myriad of criteria, not the least of which is the trial court’s

actual knowledge of the motion or petition, its overt refusal to act on same, the state of

the court’s docket, and the existence of other judicial and administrative matters which

must be addressed first. Id. at 228–29. So too must the trial court’s inherent power to

control its docket be factored into the mix. Id. at 229. Relator presented no supporting

record illustrating that the trial court knew of his petition and failed to act upon it in a

reasonable time. This failure likewise precludes us from issuing a writ of mandamus.

To reiterate, the petition for writ of mandamus is denied. The Clerk of this Court is

directed to serve the Honorable Steven Emmert with a copy of this order and the petition

for writ of mandamus in a manner affording Judge Emmert actual notice of same.

Brian Quinn
Chief Justice

Do not publish.

2