                                      NO. 12-09-00003-CR

                           IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS
                                                          §

IN RE: MICHAEL KENNEDY,                                   §     ORIGINAL PROCEEDING
RELATOR
                                                          §

                                        MEMORANDUM OPINION
                                            PER CURIAM
         Michael Kennedy filed a pro se petition for mandamus relief asking us to direct the trial
court to rule on his motion to dismiss his appellate counsel.
         Before mandamus relief may issue to require a trial court to rule on a motion, the relator
must establish that the court was asked to rule and failed or refused to do so within a reasonable
time. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.–San Antonio 1997, orig.
proceeding). The record in this case does not include any correspondence or other document in
which Kennedy calls the trial court's attention to the motion or requests that a hearing be set to
determine its merit. The trial court cannot be faulted for doing nothing when it was not aware of
the need to act. In re Villareal, 96 S .W.3d 708, 710 (Tex. App.–Amarillo 2003, orig. proceeding).
We cannot simply assume that the trial court knew of its duty to act and neglected to perform it.
Id. Accordingly, Kennedy's petition for writ of mandamus is denied.
Opinion delivered January 7, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.


                                             (DO NOT PUBLISH)
                               COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         JUDGMENT
                                          JANUARY 7, 2009

                                      NO. 12-09-00003-CR

                                  IN RE: MICHAEL KENNEDY,
                                           RELATOR


                                  ORIGINAL PROCEEDING
                       ON THIS DAY came to be heard the petition for writ of mandamus filed by
MICHAEL KENNEDY , who is the relator in Cause No. 29326, pending on the docket of the 3rd
Judicial District Court of Anderson County, Texas. Said petition for writ of mandamus having been
filed herein on January 5, 2009, and the same having been duly considered, because it is the opinion
of this Court that A WRIT    OF   MANDAMUS SHOULD NOT ISSUE , it is therefore CONSIDERED,
ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby
DENIED .
                       By per curiam opinion.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
