                                NUMBER 13-11-00577-CV

                                   COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


                                IN RE ARNOLDO MUÑOZ


                          On Petition for Writ of Mandamus.


                    MEMORANDUM OPINION ON REHEARING

                  Before Justices Rodriguez, Vela, and Perkes
                      Per Curiam Memorandum Opinion1

       After considering pro se relator Arnoldo Muñoz's motion for rehearing filed on

September 30, 2011, we deny the motion; however, we withdraw our memorandum

opinion and judgment of September 15, 2011, and substitute the following.

       On September 12, 2011, relator filed a petition for writ of mandamus in the above

cause, seeking to compel the trial court to render a ruling on his trespass to try title suit

       1
          See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
and on other motions pertaining to his suit. Without supporting documentation, relator

alleges in his petition that he filed his trespass to title suit against Julie Benavidez on

June 29, 2010. He also asserts that he filed, among other things, the following: (1) a

motion for a restraining order on October 15, 2010 and again on November 12, 2010;

(2) a motion for the issuance for a bench warrant on November 12, 2010; (3) a motion

for trial by judge on November 12, 2010; and (4) a motion for the trial court to render a

decision on issues pertaining to this cause on July 11, 2011. Relator further alleges that

because Benavidez refused to accept delivery of his discovery requests, on December

2, 2010, he mailed copies to the district clerk and requested that Benavidez be served

with copies of the documents. As of the date of the filing of his petition for writ of

mandamus, relator claims that the trial court has "refused to render a ruling on any of

the documents [he] has filed" and has not "ordered that [Benavidez] be served with the

discovery motions or with the [m]otion for [r]estraining [o]rder."

       A writ of mandamus will issue only to correct a clear abuse of discretion or

violation of a duty imposed by law when there is no adequate remedy by appeal.

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has

a ministerial duty to consider and rule on motions properly filed and pending before the

court, and mandamus may issue to compel the judge to act. Safety-Kleen Corp. v.

Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding); see In

re Mission Consol. Ind. Sch. Dist., 990 S.W.2d 459, 461 (Tex. App.—Corpus Christi

1999, orig. proceeding) (concluding that courts of appeals have the power to compel a

trial judge to rule on pending motions). The trial court, however, has a "reasonable"




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time within which to rule upon a motion. In re Ramirez, 994 S.W.2d 682, 683 (Tex.

App.—San Antonio 1998, orig. proceeding); Safety-Kleen Corp., 945 S.W.2d at 269.

       Whether a reasonable period of time has lapsed is dependent on the

circumstances of each case. Ex parte Bates, 65 S.W.3d 133, 135-36 (Tex. App.—

Amarillo 2001, orig. proceeding). Factors relevant to whether a reasonable time has

lapsed include the following: (1) the trial court's actual knowledge of the motion; (2) its

overt refusal to act; (3) the state of its docket; and (4) other judicial and administrative

duties which it must address. In re Villarreal, 96 S.W.3d 708, 711 (Tex. App.—Amarillo

2003, orig. proceeding); see Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979)

(providing that to establish entitlement to the issuance of a writ of mandamus

compelling a trial court to consider and rule on a pending motion, the relator bears the

burden to establish that (1) the trial court had a legal duty to perform, (2) relator made a

demand for performance of this duty, and (3) the trial court refused to act); In re Torres,

130 S.W.3d 409, 413 (Tex. App.—Corpus Christi 2004, orig. proceeding). Specific to

the trial court's knowledge of the motion, a court is not required to consider a motion not

called to its attention. Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.—Houston [1st

Dist.] 1994, writ denied).    Showing that a motion was filed with a 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. In re Davidson, 153 S.W.3d 490, 491 (Tex.

App.—Amarillo 2004, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—

San Antonio 2004, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—

Amarillo 2001) (orig. proceeding).




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        The Court, having examined and fully considered the petition for writ of

mandamus, is of the opinion that relator has not shown himself entitled to the relief

sought. First, relator's petition2 fails to comply with Texas Rule of Appellate Procedure

52.3 insofar as the factual statements and arguments in the petition are not supported

by citation to competent evidence included in an appendix or record.3 See TEX. R. APP.

P. 52.3(g), (h).

        In addition, relator has not provided this Court with certified or sworn copies of

any documents for which he requested the trial court's assistance.                          See id. at R.

52.3(k)(1), 52.7(a)(1). The absence of a mandamus record prevents us from evaluating

the circumstances of this case and, consequently, the merits of relator's complaints.

See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.

proceeding) ("Even a pro se applicant for a writ of mandamus must show himself

entitled to the extraordinary relief he seeks."). It is relator's obligation to provide us with

evidence against which we could test the reasonableness of the trial court's alleged

delay. See Chavez, 62 S.W.3d at 229.

        In the instant case, the mandamus petition provides only allegations of motions

being filed with the district clerk. The record does not include any file-stamped copies of

the documents at issue. There is no indication in the mandamus petition that after filing

the motion with the district clerk, relator asked the trial court to rule on the motion or

otherwise did anything to bring the motion to the trial court's attention. Thus, relator has
        2
          Relator filed his petition for writ of mandamus on September 12, 2011. When relator filed his
motion for rehearing on September 30, 2011, he attached what we construe as a supplemental petition.
However, without deciding whether the supplemental petition is properly before us, even when reviewed
together the petitions do not comply with rule 52.3. See TEX. R. APP. P. 52.3.
        3
         Although relator identified real party in interest Julie Benavidez as a party, it is unclear from the
record whether relator served her with the petition for writ of mandamus and the motion for rehearing.

                                                          4
failed to meet his burden to show a demand for performance and a refusal to act. See

Stoner, 586 S.W.2d at 846; In re Torres, 130 S.W.3d at 413; In re Villarreal, 96 S.W.3d

at 711.

      We must therefore conclude that relator has not established his entitlement to the

extraordinary relief of a writ of mandamus. Because relator has failed to show an abuse

of discretion by the trial court, see Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at

424, we deny the petition for writ of mandamus. TEX. R. APP. P. 52.8(a).



                                                             PER CURIAM

Delivered and filed the 13th
day of October, 2011.




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