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Petition for Writ of Mandamus Denied, and Memorandum Opinion filed September 30, 2008.

 

 

 

In The

 

Fourteenth Court of Appeals

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NO. 14-08-00744 -CV

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IN RE EDWIN J. PETERS, Relator

 

 

 

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

 

 

M E M O R A N D U M  O P I N I O N


On August 7, 2008, relator Edwin J. Peters filed a petition for writ of mandamus, requesting that we order the respondent trial judge to rule on relator=s Motion to Enter Judgment Nunc Pro Tunc.  No sworn record has been filed, see Tex. R. App. P. 52.7, and relator has failed to demonstrate service of his mandamus petition upon the respondent[1] or real party in interest.  See Tex. R. App. P. 9.5; In re Williams, No. 01-03-00401-CV, 2003 WL 1989679, at *1 (Tex. App.CHouston [1st Dist.] May 1, 2003, orig. proceeding) (mem. op.) (denying mandamus petition for failure to demonstrate service of petition upon respondent).  We deny the petition for writ of mandamus.

When a motion is properly filed and presented to a trial court for ruling, the act of considering and ruling upon that motion is not a discretionary act, and mandamus may issue to compel the trial court to act.  Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.CSan Antonio 1997, orig. proceeding).  However, a trial court cannot be said to have abused its discretion until the relator establishes that the court was asked to rule, had a duty to rule, and failed or refused to do so.  See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.CAmarillo 2001, orig. proceeding); O=Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding).  Accordingly, relator carries the burden of demonstrating that the trial court was aware of his motion and yet refused to rule within a reasonable time.  See Chavez, 62 S.W.3d at 228.

According to relator, the unsworn, uncertified papers attached to his mandamus petition demonstrate that his Motion for Judgment Nunc Pro Tunc was filed on February 25, 2008.  The attached paperwork bears no file stamp, however, and is addressed to the Harris County District Clerk.  Were we to assume that relator=s motion was in fact received by the district clerk, we still are unaware of any rule that imputes the district clerk=s knowledge to the trial judge.  See id.  Thus, the unsworn mandamus record provided to us, even taken as true, does not demonstrate that relator=s motion was presented to the trial court for ruling at the time it is said to have been filed.


Relator has also enclosed correspondence from the Harris County District Clerk indicating that relator=s motion was presented to the trial court on July 1, 2008, but was not ruled-upon at that time.  A trial court has a reasonable time within which to rule on a properly-pending motion.  See id.  No bright line outlines the boundaries of what may be considered reasonable.  See id.  Instead, whether the judge has acted within a reasonable time depends upon the particular circumstances of the case and rests upon a Amyriad of criteria,@ including the state of the court=s docket and the existence of other matters which must be addressed first.  See id. at 228B29. 

It is relator=s obligation to provide us with evidence against which we may test the reasonableness of the trial court=s alleged delay.  See id. at 229.  Absent such evidence, we cannot conclude that the trial court abused its discretion by not addressing relator=s motion in the time period between July 1, the date the motion was apparently presented to the trial court, and August 7, the date relator filed his petition for writ of mandamus.

Accordingly, we deny the petition for writ of mandamus.

PER CURIAM

Petition Denied, and Memorandum Opinion filed, September 30, 2008.

Panel consists of Justices Anderson and Frost, and Senior Justice Hudson.*



            [1]           Relator mis-identifies the respondent as the Honorable Joan Huffman who, in 2005, resigned as the presiding judge of the 183rd District Court of Harris County, Texas.  The Honorable Vanessa Velasquez now presides over the 183rd District Court.

            *           Senior Justice Hudson sitting by assignment.