IN RE: GRETCHON WINDELL POWELL (2017)

MEMORANDUM OPINION

In these original proceedings,¹ Relator Gretchon Windell Powell seeks mandamus relief in the form of compelling the Respondent trial court judge to rule on Powell's motion for production of documents and motion to compel. Powell alleges that the motion for production of documents was filed on or about September 21, 2016, and that the motion to compel was filed on November 28, 2016.

“A court with mandamus authority ‘will grant mandamus relief if relator can demonstrate that the act sought to be compelled is purely ‘ministerial’ and that relator has no other adequate legal remedy.' ” In re Piper, 105 S.W.3d 107, 109 (Tex. App.—Waco 2003, orig. proceeding) (quoting State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 197-99 (Tex. Crim. App. 2003) (orig. proceeding)). Consideration of a motion properly filed and before the court is ministerial. State ex rel. Hill v. Ct. of App. for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).

Mandamus may issue to compel a trial court to rule on a motion which has been pending before the court for a reasonable period of time. See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex. App.—Waco 2003, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); see also In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). To obtain mandamus relief for such refusal, a relator must establish: (1) the motion was properly filed and has been pending for a reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to rule. See Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at 252; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; see also Shredder Co., 225 S.W.3d at 679. The mere filing of a motion with a trial court clerk does not equate to a request that the trial court rule on the motion. See Hearn, 137 S.W.3d at 685; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. Shredder Co., 225 S.W.3d at 680 (“Relator has made repeated requests for a ruling on its motion.”).

In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding) (emphasis added).

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. Chavez, 62 S.W.3d at 228. But that duty generally does not arise until the movant has brought the motion to the trial judge's attention, and mandamus will not lie unless the movant makes such a showing and the trial judge then fails or refuses to rule within a reasonable time. See id. Also, the mere filing of a pleading or letter with the clerk does not impute knowledge to the trial judge. See In re Flores, No. 04-03-00449-CV, 2003 WL 21480964, at *1 (Tex. App.—San Antonio Jun. 25, 2003, orig. proceeding) (mem. op.).

Powell bears the burden of providing a sufficient record to establish his right to mandamus relief. See In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); see also In re Mullins, 10-09-00143-CV, 2009 WL 2959716, at *1 n.1 (Tex. App.—Waco Sept. 16, 2009, orig. proceeding) (mem. op.). There is no record showing that Powell has brought these matters to the attention of the trial judge and that the trial judge has then failed or refused to rule within a reasonable time.

We deny the petitions for writ of mandamus.

FOOTNOTES

1.   The applications (petitions) for writ of mandamus lack proof of service. A copy of all documents presented to the Court must be served on all parties (i.e., the trial court judge and the State through the district attorney in these proceedings) and must contain proof of service. TEX. R. APP. P. 9.5, 52.2. The petitions also lack most of the contents required by Rule of Appellate Procedure 52. Id. 52.3, 52.7. They do not include the certification required by Rule of Appellate Procedure 52.3(j). Id. 52.3(j). They also lack a record. Id. 52.7. To expedite these matters, we invoke Rule of Appellate Procedure 2 to suspend these requirements. Id. 2.

REX D. DAVIS Justice