Opinion
NO. 14-17-00970-CV
01-23-2018
IN RE DAVID STARKS, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS
311th District Court Harris County, Texas
Trial Court Cause No. 2017-26707
MEMORANDUM OPINION
On December 13, 2017, relator David Starks filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (West Supp. 2017); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Alicia Franklin York, presiding judge of the 311th District Court of Harris County, to rule on and grant a petition for a name change, which relator alleges he filed with the district court.
As the party seeking relief, relator must shoulder the burden of providing this court with a sufficient record to establish the relator's right to mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); Tex. R. App. P. 52.7(a)(1) (relator must file with petition "a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding").
"A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act." In re Henry, 525 S.W.3d 381 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding) (per curiam).Yet, to be entitled to such relief, a relator must establish that the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed or refused to rule on the motion within a reasonable time. The record must show both that the motion was filed and the trial court has not ruled on the motion within a reasonable time after being requested to do so. See In re Foster, 503 S.W.3d 606, 607 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (per curiam). Therefore, relator has the burden to provide this court with a file-stamped certified or sworn copy of the petition for name change and a record showing that he brought the petition to the attention of the trial court for a ruling. Relator has not provided this court with any record, much less one that shows that he is entitled to mandamus relief.
See In re Wigley, No. 14-17-00102-CV, 2017 WL 642109, at *1 (Tex. App.—Houston [14th Dist.] Feb. 16, 2017, orig. proceeding) (per curiam) (mem. op.) (denying petition for writ of mandamus because relator failed to provide this court with a file-stamped certified or sworn copy of the motion and a record showing that the motion was brought to the trial court's attention); In re Callicotte, No.14-16-00937-CV, 2016 WL 6990037 (Tex. App.—Houston [14th Dist.] Nov. 29, 2016, orig. proceeding) (per curiam) (mem. op.) (denying petition for writ of mandamus because relator had not included file-stamped copies of the motions in the record); In re Bishop, No. 14-06-00636-CV, 2006 WL 2434200, at *1 (Tex. App.—Houston [14th Dist.] Aug. 24, 2006, orig. proceeding) (per curiam) (mem. op.) (denying petition for writ of mandamus because there was no file stamp or other indication the motions in fact were filed and were pending before the trial court).
Additionally, Texas Rule of Appellate Procedure 52.3(j) provides that the one filing the petition must certify that the filer "has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record." See Tex. R. App. P. 52.3(j). Relator's petition does not contain this certification.
For these reasons, we deny the petition for writ of mandamus.
PER CURIAM Panel consists of Chief Justice Frost and Justices Busby and Wise.