                                     IN THE
                             TENTH COURT OF APPEALS



                                     No. 10-09-00123-CV

                       IN RE LARRY CLAUDE BRUMBALOW


                                     Original Proceeding



                                           OPINION


       Larry Claude Brumbalow, a Texas inmate proceeding pro se, seeks a writ of

mandamus against Respondent, the Honorable James E. Morgan, Judge of the 220th

Judicial District Court of Hamilton County, on grounds that he will not rule on

Brumbalow’s motion asking Respondent to entertain his divorce suit. According to

Brumbalow, he filed a petition for divorce on October 20, 2008, but the petition has not

been served. On January 25, 2009, Brumbalow filed a “Motion Requesting Judge to

Entertain Divorce Proceeding.” He has not received a ruling on this motion.1 We deny

the relief requested.


1        This information is derived largely from that contained in Brumbalow’s pleadings. We note,
however, that Brumbalow’s mandamus application is defective because it does not include: (1) the
certification required by Rule of Appellate Procedure 52.3(j); (2) proof of service required by Rule of
        We will grant mandamus relief if there has been an abuse of discretion and the

relator has no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-

38 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.

proceeding). A trial judge has a reasonable time to perform the ministerial duty of

considering and ruling on a motion properly filed and before the judge. In re Chavez, 62

S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); In re Martinez Ramirez,

994 S.W.2d 682, 683-84 (Tex. App.—San Antonio 1998, orig. proceeding). But that duty

generally does not arise until the movant has brought the motion to the trial judge’s

attention, and mandamus will not lie unless the movant makes such a showing and the

trial judge then fails or refuses to rule within a reasonable time. See Chavez, 62 S.W.3d at

228.

        Brumbalow has not shown with a record that he has brought his motion to the

attention of the respondent trial judge. See In re Comeaux, No. 10-07-00235-CV, 2007 Tex.

App. LEXIS 9518, at *3-4 (Tex. App.—Waco Dec. 5, 2007, orig. proceeding); see also In re

Layton, 257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding). Thus, we

cannot say that Respondent has abused his discretion. Cf. In re Nabelek, No. 10-06-

00241-CV, 2007 Tex. App. LEXIS 926 (Tex. App.—Waco Feb. 7, 2007, orig. proceeding)

(mem. op. on reh’g). The mandamus application is denied.




Appellate Procedure 9.5; or (3) the required record pursuant to Rules of Appellate Procedure 52.3 and
52.7. See TEX. R. APP. P. 9.5; see also TEX. R. APP. P. 52.3(k)(1)(A); TEX. R. APP. P. 52.7. Nevertheless, we will
apply Rule of Appellate Procedure 2 and disregard these deficiencies because Brumbalow cannot prevail
on the merits of his claim based on the information provided. TEX. R. APP. P. 2.



In re Brumbalow                                                                                           Page 2
                                           FELIPE REYNA
                                           Justice
Before Chief Justice Gray
       Justice Reyna, and
       Justice Davis
Writ denied
Opinion delivered and filed May 13, 2009
[OT06]




In re Brumbalow                                           Page 3
