                                  IN THE
                          TENTH COURT OF APPEALS



                                 No. 10-10-00395-CV

                             IN RE JAMES C. FULLER


                                 Original Proceeding



                           MEMORANDUM OPINION


       This is James C. Fuller’s second attempt to obtain a writ of mandamus

compelling Respondent, the Honorable Barbara Hale, Judge of the County Court at Law

of Walker County, to render a final judgment in his lawsuit. See Fuller v. Moya, No. 10-

09-00294-CV, 2009 WL 4852425 (Tex. App.—Waco Dec. 16, 2009, no pet.) (dismissing

Fuller’s appeal for lack of final judgment). We will again deny Fuller’s mandamus

petition.1

       We denied Fuller’s first mandamus petition because he failed to provide a

certified or sworn mandamus record indicating that he had requested Respondent to



1
      We apply Rule of Appellate Procedure 2 and disregard numerous deficiencies in Fuller’s
mandamus petition. See TEX. R. APP. P. 2.
render a final judgment in his suit. See In re Fuller, No. 10-10-00299-CV, 2010 WL

3342192, at *1 (Tex. App.—Waco Aug. 25, 2010, orig. proceeding). Fuller has attached a

“Motion for Final Judgment” to his second mandamus petition which he prepared and

delivered to the county clerk at the same time as his second mandamus petition.

        Fuller acknowledges in his mandamus petition that he must provide “a certified

or sworn copy of every document that is material to [his] claim for relief and that was

filed in [the] underlying proceeding.” See TEX. R. APP. P. 52.7(a)(1). Though we have

noted that Fuller’s petition contains “numerous deficiencies,” we take a moment to

address his attempt to comply with Rule 52.7(a)(1). The preferred method of complying

with this requirement is to provide a file-stamped copy of any document relied on and

certify or swear that (1) it is a true and correct copy and (2) it was filed in the underlying

proceeding. See In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.

proceeding) (stating preference for file-stamped copies of pleadings in mandamus

record).       As we will discuss, the timing of Fuller’s filing of his Motion for Final

Judgment is important, so this certification should also state the date on which the

motion was filed in the trial court, especially if a file-stamped copy is not provided.

        Fuller attached an unsworn declaration to the Motion for Final Judgment which

states in pertinent part “that the forgoing is true and correct. The trial court has been

given ampell [sic] amount of time to rule on the above cause number. And that the trial

court has been put on notice that a Mandamus is in the Court of Appeals.” We may

infer from this declaration that Fuller has provided us a “true and correct” copy of this




In re Fuller                                                                            Page 2
motion and that it was filed in the underlying proceeding, but it would be better for

him to say so directly.

        As we stated in the prior mandamus petition, “[t]here are three prerequisites for

the granting of mandamus relief: (1) the lower court must have a legal duty to perform

a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the

subject court must refuse that request.” Fuller, 2010 WL 3342192, at *1.

        Merely filing a motion with the trial court clerk is not sufficient to establish that a

“demand for performance” has been made.

        The trial court is not required to consider a motion unless it is called to the
        court’s attention. Showing that a motion was filed with the court clerk
        does not constitute proof that the motion was brought to the trial court’s
        attention or presented to the trial court with a request for a ruling.

Blakeney, 254 S.W.3d at 662 (citations omitted); see In re Chavez, 62 S.W.3d 225, 228 (Tex.

App.—Amarillo 2001, orig. proceeding). Here, Fuller has arguably shown that he filed

the Motion for Final Judgment with the county clerk. However, there is nothing in the

record to indicate that he has called the motion to Respondent’s attention.

        A trial court has a ministerial duty to rule on a pending motion within a

reasonable period of time. In re State, 304 S.W.3d 581, 583 (Tex. App.—El Paso 2010,

orig. proceeding); In re Allied Chem. Corp., 287 S.W.3d 115, 131 (Tex. App.—Corpus

Christi 2009, orig. proceeding). What is a “reasonable period of time” depends on the

circumstances of a particular case. Allied Chem. Corp., 287 S.W.3d at 131; Blakeney, 254

S.W.3d at 662. Here, Fuller filed the Motion for Final Judgment with the county clerk

on the same date that he filed his mandamus petition. Thus, Respondent has not had a



In re Fuller                                                                              Page 3
“reasonable period of time” to consider and rule on the motion. See State, 304 S.W.3d at

583-84 (5 days not reasonable period of time); In re Tasby, 40 S.W.3d 190, 191-92 (Tex.

App.—Texarkana 2001, orig. proceeding) (30 days not reasonable period of time).

        For these reasons, we deny Fuller’s second mandamus petition.



                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Petition denied
Opinion delivered and filed November 17, 2010
[OT06]




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