Opinion
No. 04-06-00267-CV
Delivered and Filed: May 24, 2006.
This proceeding arises out of Cause No. 06-01-00003-CVK, styled Raymond H. Coe v. John Rodriguez, Wally Rodriguez, Juan J. Nuñez and Raymond Villarreal, pending in the 81st Judicial District Court, Karnes County, Texas, the Honorable Donna S. Rayes presiding.
Petition for Writ of Mandamus Denied.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Relator, Raymond H. Coe, an inmate proceeding pro se, seeks a writ of mandamus directing the trial court to rule on his motion for default judgment in the underlying cause. When a motion is properly filed and pending before a 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. In re Ramirez, 994 S.W.2d 682, 683-84 (Tex.App.-San Antonio 1998, orig. proceeding). However, mandamus will not issue unless the the record shows that a properly filed motion has awaited disposition for an unreasonable time. In re Mendoza, 131 S.W.3d 167, 168 (Tex.App.-San Antonio 2004, orig. proceeding). It is the relator's burden to provide the appellate court with a record establishing his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).
The record before us fails to establish Coe is entitled to the relief requested. Although Coe states in his mandamus petition that he filed a motion for default judgment "on or about March 10, 2006," Coe has not provided this court with a file-stamped copy of his motion or other proof that his motion was actually filed with the trial court clerk. See Tex.R.App.P. 52.7(a)(1) (relator must file with the mandamus petition a certified or sworn copy of every document that is material to relator's claim for relief and that was filed in any underlying proceeding). Additionally, the record does not show that Coe's motion has awaited disposition for an unreasonable time. See In re Ramirez, 994 S.W.2d at 684 (conditionally granting mandamus relief and directing trial court to consider motion for judgment by default when the record showed the motion was on file for over eighteen months and relator had made repeated efforts to have it considered); see also Ex parte Bates, 65 S.W.3d 133, 135 (Tex.App.-Amarillo 2001, orig. proceeding) (recognizing various factors to be considered in determining whether a trial court has unnecessarily delayed a ruling). Accordingly, the petition for a writ of mandamus is denied. See Tex.R.App.P. 52.8(a).