Petition for Writ of Mandamus Dismissed, in Part, and Denied, in Part, and
Memorandum Opinion filed October 16, 2014.




                                      In The

                     Fourteenth Court of Appeals

                                NO. 14-14-00784-CR



                    IN RE DAVID LEE JOHNSON, Relator


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                               339th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1349794

                         MEMORANDUM OPINION

      On September 30, 2014, relator David Lee Johnson filed a petition for writ
of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see
also Tex. R. App. P. 52. In the petition, relator names the Harris County District
Clerk and the presiding judge of the 339th District Court of Harris County, Texas,
as respondents. Relator complains that respondents have failed to provide him
with the record related to his underlying conviction.
      This court’s mandamus jurisdiction is governed by Section 22.221 of the
Texas Government Code.           Section 22.221 expressly limits the mandamus
jurisdiction of the courts of appeals to: (1) writs against a district court judge or a
county court judge in the court of appeals’ district; and (2) all writs necessary to
enforce the court of appeals’ jurisdiction. Tex. Gov’t Code Ann. § 22.221. The
district clerk is not a district court or county court judge in this court’s district, and
relator has not shown that the issuance of a writ compelling the requested relief is
necessary to enforce this court’s appellate jurisdiction. Therefore, we do not have
jurisdiction to issue a writ of mandamus against the district clerk.

      As to the presiding judge of the 339th District Court, relator states that he
filed two motions with the court, requesting the reporter’s record and clerk’s
record, but the trial court never ruled on the motions. Relator further explains that
he is not able to produce copies of the motions he filed with the trial court due to
the mishandling of his motions.

      A trial court has a ministerial duty to consider and rule on motions properly
filed and pending before it, and mandamus may issue to compel the trial court to
act. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.
proceeding); Ex parte Bates, 65 S.W.3d 133, 134 (Tex. App.—Amarillo 2001,
orig. proceeding). In order to be entitled to mandamus relief compelling a trial
court to rule on a properly filed motion, relator must establish that the trial court
(1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and
(3) failed or refused to rule on the motion within a reasonable time. In re Layton,
257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding); In re Molina,
94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding). However,
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a court is not required to consider a motion not called to its attention. Layton, 257
S.W.3d at 795.

      Relator, by his own admission, has not provided a file-stamped copy of his
motions demonstrating that such documents are actually pending in the trial court
or have been called to the attention of the trial court. Relator requests this court to
search the files of the district clerk for the motions purportedly filed. It is relator’s
burden to provide this court with a record sufficient to establish his right to
mandamus relief. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.
proceeding).      Relator has not provided a sufficient record establishing his
entitlement to mandamus relief. See Tex. R. App. P. 52.3(k), 52.7(a); see also
Blakeney, 254 S.W.3d at 661 (noting relator’s failure to attach file-marked copies
of the motion he claimed to have filed in the trial court). Relator has not shown
that he entitled to a writ of mandamus against the presiding judge of the 339th
District Court.

      Accordingly, we dismiss relator’s petition, in part, for lack of jurisdiction,
and deny the remainder.


                                                     PER CURIAM

Panel Consists of Justices McCally, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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