law-mandamus-failure-to-rule-on-motion | refusal to perform non-discretionary act or ministerial duty
| discovery mandamus | mandamus vs. interlocutory appeal | mandamus standard |
common errors in mandamus petitions | mandamus petition requirements | mandamus against public official |
venue mandamus | mandamus based on trial court's failure to rule on motion |
MUST SET MOTION PROPERLY FOR HEARING BY THE JUDGE
"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.
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.
In re Robertson, Ted Lawrence (Tex. App. - Houston [14th Dist.] Jun. 11, 200(per curiam) (mandamus relief
denied, must secure ruling or refusal in trial court, default protective order challenged in this case)
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.
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