                               NO. 12-09-00267-CV

                         IN THE COURT OF APPEALS

             TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS


                                                  '
IN RE: MICHAEL KENNEDY,
RELATOR                                           '   ORIGINAL PROCEEDING

                                                  '

                                   MEMORANDUM OPINION

       Michael Kennedy seeks mandamus relief to compel the trial court to set his civil
rights case for trial. Kennedy complains that his case was filed on August 21, 2008, but
that the trial court has not set a trial date. Kennedy further asserts that, on August 24,
2008, he filed a motion requesting a trial setting.
       Mandamus is an extraordinary remedy available only in limited circumstances
involving manifest and urgent necessity and not for grievances that may be addressed by
other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). To be entitled to
mandamus relief, a relator must demonstrate that the trial court abused its discretion and
that the relator has no adequate remedy at law. Id. at 839-40.
       We first note that, although Kennedy states he has included a copy of the motion
for trial setting in the appendix accompanying his mandamus petition, no such appendix
is attached to the petition. Moreover, a trial court is not required to consider a motion
that has not been called to its attention. See Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.
App.–Houston [1st Dist.] 1994, writ denied); see also TEX . R. APP . P. 33.1. “Indeed, one
can hardly be faulted for doing nothing if he were never aware of the need to act.” In re
Chavez, 62 S.W.3d 225, 227 (Tex. App.–Amarillo 2001, orig. proceeding).
         Here, Kennedy has not furnished a record.              Consequently, he has made no
showing that the respondent trial court has notice of the motion. To be entitled to
mandamus relief, it is incumbent upon Kennedy to illustrate that the trial court has
knowledge of the motion. See id. at 228. Kennedy has not met this burden, and therefore
we cannot say that the trial court abused his discretion in allegedly failing to rule on the
motion. See id. Accordingly, Kennedy’s petition for writ of mandamus is denied.



                                                                            JAMES T. WORTHEN
                                                                              Chief Justice




Opinion delivered September 30, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)
