AVAILABILITY OF MANDAMUS TO GET TRIAL COURT TO RULE ON MOTION
In re Robertson, Ted Lawrence (Tex. App. - Houston [14th Dist.] Jun. 11, 2009 (per curiam)
(motion must be properly for hearing set before mandamus can be sought against trial court judge for
failing to rule; mandamus petition also had defects in form in this case).
MOTION OR WRIT DENIED: Per Curiam  
Before Justices Seymore, Brown and Sullivan
14-09-00478-CV In Re Ted Lawrence Robertson
Appeal from
312th District Court of Harris County
Trial Court Judge: Robert Hinojosa

MOTION OR WRIT DENIED: Per Curiam  
http://www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=85784

Petition for Writ of Mandamus Denied and Memorandum Opinion filed June 11, 2009.

In The

Fourteenth Court of Appeals
____________

NO. 14-09-00478-CV
NO. 14-09-00479-CV
____________

IN RE TED LAWRENCE ROBERTSON , Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On May 20, 2009, relator, Ted Lawrence Robertson, filed two related petitions for writ of
mandamus in this court.  See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R.
App. P. 52.  Relator was served with citation that commanded him to appear, on August 15,
2001, before the 247th District Court of Harris County.  Instead, on August 15, 2001, the 312th
District Court entered a
default judgment and protective order against relator.  Relator was
subsequently convicted, in the 174th District Court of Harris County, of violating the protective
order.  

In the first petition, relator requests that we compel the Honorable Robert Hinojosa, presiding
judge of the 312th District Court of Harris County, to rule on his motion to vacate and/or set aside
the default judgment and protective order entered by that court on August 15, 2001.[1]  Relator
filed his motion to vacate and/or set aside the default judgment and protective order in January
2009 and, again, in March 2009, but Judge Hinojosa has yet to rule on either motion.  

In his second petition, relator requests that we compel the Honorable Bonnie Crane Hellums,
presiding judge of the 247th District Court of Harris County, to rule on his motion for a ruling,
hearing, and/or trial on all pending motions in the underlying case in that court.[2]  In May or June
2007, relator filed a motion requesting Judge Hellums to vacate and/or set aside the same
default judgment and protective order that were issued by the 312th District Court on August 15,
2001.  On January 11, 2009, relator filed a motion requesting that Judge Hellums rule on all
pending motions, including his motion to vacate and/or set aside the subject default judgment
and protective order, but she has not ruled on that motion.  

As an initial matter, neither of relator's petitions complies with the Texas Rules of Appellate
Procedure.  Relator's petitions do not include certification that he has reviewed either petition
and has concluded that every factual statement in his petitions is supported by competent
evidence in the record.  See Tex. R. App. P. 52.3(j).  Relator also has not filed a record with
either petition that includes a sworn or certified copy of every document that is material to
relator's claims for relief and that was filed in the underlying proceeding.  See Tex. R. App. P.
52.7(a)(1).  

"When a motion is properly filed and pending before the trial court, the act of giving consideration
to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial
judge to act."  Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.- San Antonio
1997, orig. proceeding).  To establish that the trial court abused its discretion by failing to rule,
the relator must show that the trial court:  (1) had a legal duty to perform a nondiscretionary act;
(2) was asked to perform that act; and (3) failed or refused to do so.  In re Shredder Co., L.L.C.,
225 S.W.3d 676, 679 (Tex. App.- El Paso 2006, orig. proceeding).  While we have jurisdiction to
direct the trial court to rule on a motion, we may not instruct the trial court on how to rule.  In re
Ramirez, 994 S.W.2d 682, 684 (Tex. App.-San Antonio 1998, orig. proceeding).  

Relator has not demonstrated that he filed the subject motions with the 312th and 247th District
Courts or that those courts had received, were aware of, or were asked to rule on the respective
motions by any correspondence or other documents from relator calling the courts' attention to
his motions.  See In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.- Amarillo 2003, orig.
proceeding).  Filing a document with the district clerk does not mean the trial court is aware of it;
nor is the clerk's knowledge imputed to the trial court.  In re Hearn, 137 S.W.3d 681, 685 (Tex.
App.-San Antonio 2004, orig. proceeding); In re Villarreal, 96 S.W.3d at 710 n.2.  Therefore,
relator has not established that the 312th and 247th District Courts abused any discretion in
failing to rule on his motions.  See In re Shredder Co., L.L.C., 225 S.W.3d at 679.  

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  
Accordingly, we deny relator's petition for writ of mandamus.

PER CURIAM

Panel consists of Justices Seymore, Brown, and Sullivan.

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     [1]  Relator's first petition for writ of mandamus is pending in cause number 14-09-00478-CV.

     [2]  Relator's second petition for writ of mandamus is pending in cause number 14-09-00479-CV.