IN RE: Cynthia Johnson (2010)

M E M O R A N D U M O P I N I O N

On November 10, 2010, relator Cynthia Johnson filed a petition for writ of mandamus and a motion for temporary relief.   See Tex.R.App. P. 52.8, 52.10.   Shortly thereafter, we issued an order granting the motion for temporary relief and staying the execution of the judgment against Johnson pending our resolution of the petition for writ of mandamus.   In the order, we also allowed the real parties in interest to file a response by December 1, 2010.   See id.   R. 52.4.   In her petition, Johnson asserts that the county court abused its discretion by failing to set, in response to her filed motion, the amount of a supersedeas bond.

To obtain mandamus relief for an alleged refusal to rule on a motion, a party must show that “(1) the trial court had a legal duty to act, (2) there was a demand for performance, and (3) there was a refusal to act.”  In re Smith, 263 S.W.3d 93, 96 (Tex.App.-Houston [1st Dist.] 2006, orig. proceeding).   Simply showing “that a motion was filed with the clerk does not constitute proof that the motion was brought to the attention of the trial court,” id., or that the motion was “presented to the trial court with a request for a ruling,” In re Davidson, 153 S.W.3d 490, 491 (Tex.App.-Amarillo 2004, orig. proceeding).   Although the record shows that Johnson filed a motion asking the court to set the amount, nothing in the record indicates that she set the matter for a hearing or requested a ruling or that the trial court refused to act.

Accordingly, having reviewed the petition, response, and record, we dissolve our stay and deny the petition for writ of mandamus.

David Puryear, Justice