Opinion
Nos. 14-09-00478-CV, 14-09-00479-CV
Opinion filed June 11, 2009.
Original Proceeding Writ of Mandamus.
Panel consists of Justices SEYMORE, BROWN, and SULLIVAN.
MEMORANDUM OPINION
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. 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.
Relator's first petition for writ of mandamus is pending in cause number 14-09-00478-CV.
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. 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.
Relator's second petition for writ of mandamus is pending in cause number 14-09-00479-CV.
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.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.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.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. 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.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.