Petition for Writ of Mandamus Denied and Memorandum Opinion filed
January 9, 2014.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-13-01004-CV



                     IN RE JOSE JUAN AMARO, Relator


                          ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              300th District Court
                            Brazoria County, Texas
                          Trial Court Cause No. 67083

                         MEMORANDUM OPINION

      On November 12, 2013, relator Jose Juan Amaro filed a petition for writ of
mandamus in this Court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P.
52. In the petition, relator asks this Court to compel the Honorable K. Randall
Hufstetler, presiding judge of the 300th District Court of Brazoria County, to rule
on relator’s motion to set aside a default judgment filed with the trial court on or
about December 31, 2012.
      Mandamus relief is proper to correct a clear abuse of discretion or to compel
the performance of a ministerial duty, when the relator has no adequate remedy by
appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004)
(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig.
proceeding). The act of a trial court considering and ruling on a motion that is
properly filed and before it is a ministerial act, and, in appropriate cases,
mandamus may issue to compel a trial court to act on a motion. In re Blakeney,
254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); In re
Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding).
To obtain mandamus relief based on a trial court’s failure or refusal to act on a
motion, the relator must show that the trial court: (1) had a legal duty to rule;
(2) was asked to rule; and (3) failed or refused to do so. See O’Connor v. First
Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding); In re Dimas,
88 S.W.3d 349, 351 (Tex. App.—San Antonio 2002, orig. proceeding).

      A party who complains about a trial court’s refusal to rule on a pending
motion must show that the matter was brought to the attention of the trial court.
Blakeney, 254 S.W.3d at 662; Hearn, 137 S.W.3d at 685. Merely filing a motion
with a court clerk does not show that the motion was brought to the trial court’s
attention, because the clerk’s knowledge is not imputed to the trial court. Blakeney,
254 S.W.3d at 662; In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001,
orig. proceeding).

      It is the relator’s burden to provide this Court with a sufficient record to
establish the right to mandamus relief. See Tex. R. App. P. 52.3, 52.7; Walker 827
S.W.2d at 837; In re Villarreal, 96 S.W.3d 708, 711 (Tex. App.—Amarillo 2003,

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orig. proceeding). Here, relator attached a limited record to his petition, consisting
of his motion to set aside, copies of two U.S. Postal Service return receipts, a copy
of a letter addressed to the Court Coordinator of the 300th District Court, and an
affidavit in support of his petition. This limited record is insufficient to establish
that relator is entitled to mandamus relief.

      The documents included in relator’s record fail to demonstrate that his
motion was brought to the attention of the trial court and the trial court failed or
refused to rule. The copy of relator’s motion to set aside bears a file-stamp
indicating it was received by the district clerk, but since the clerk’s knowledge
cannot be imputed to the trial court, this document is insufficient to satisfy relator’s
burden. See Blakeney, 254 S.W.3d at 662; Chavez, 62 S.W.3d at 228. The copy of
relator’s letter to the Court Coordinator of the 300th District Court is likewise
insufficient. This letter is not certified or file-stamped, and does not include any
other indication on its face that it actually was received, let alone presented to the
trial court. See In re Risley, No. 14-06-01005-CV, 2006 WL 3486823, *2 (Tex.
App.—Houston [14th Dist.] Dec. 5, 2006, orig. proceeding) (mem. op.) (per
curiam) (stating relator’s “copies of his subsequent motions and letters to the clerk
are not certified and do not reflect a file stamp; therefore, the copies do not
evidence that relator made the court aware of his subsequent motions nor that he
asked the court to rule and it refused”); see also Villarreal, 96 S.W.3d at 710
(mailing of application deemed insufficient because it did not establish, inter alia,
“whether it was received by the district court, and the date on which it was
received (assuming it was received)”).



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      The two return receipts also do not provide sufficient proof of the trial
court’s awareness of relator’s motion. One of the receipts is addressed to the
Brazoria County District Clerk. Whatever may have been contained in that
mailing, it would not aid relator’s petition, because it would still require an
impermissible imputation of knowledge from the clerk to the trial court. The other
receipt is addressed to the 300th District Court. Without more, this document does
not provide sufficient proof that the contents of that mailing were brought to the
attention of the trial court. See Villarreal, 96 S.W.3d at 710. Finally, relator’s
affidavit merely reiterates that he mailed a copy of his motion to set aside to the
Court Coordinator of the 300th District Court, but provides no proof that his
motion was brought to the attention of or presented to the trial court. See id.

      Relator has not met his burden to prove his entitlement to mandamus relief.
See Walker, 827 S.W.2d at 837. Accordingly, we deny his petition for writ of
mandamus.

                                   PER CURIAM

Panel Consists of Justices Christopher, Donovan, and Brown.




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