




Petition for Writ of Mandamus Denied, and Memorandum Opinion filed
December 23, 2008







 
Petition
for Writ of Mandamus Denied, and Memorandum Opinion filed December 23, 2008.
 
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-08-01009-CR
____________
 
IN RE WAYNE ERNEST BARKER, Relator
 
 

 
ORIGINAL
PROCEEDING
WRIT OF MANDAMUS
 

 
M E M O R
A N D U M   O P I N I O N
On
October 31, 2008, relator Wayne Ernest Barker, acting pro se, petitioned
for a writ of mandamus, asking us to order the respondent[1]
to rule on relator=s Motion for Default Judgment.  Relator represents that he
filed his motion on July 8, 2008, but that the trial court has failed to rule
within a reasonable time.  We deny the petition for writ of mandamus.




When a
motion is properly filed and presented to a trial court for ruling, the trial
court has a ministerial duty to consider and rule upon that motion, and
mandamus may issue to compel the trial court to act.  See Safety-Kleen Corp.
v. Garcia, 945 S.W.2d 268, 269 (Tex. App.CSan Antonio 1997, orig. proceeding). 
However, a trial court cannot be said to have abused its discretion unless the
relator establishes that the trial court was asked to rule, had a duty to rule,
and failed or refused to do so.  See O=Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992)
(orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.CAmarillo 2001, orig. proceeding). 
Therefore, a relator must demonstrate that the trial court was presented with
the motion, but refused to rule within a reasonable time.  See Chavez,
62 S.W.3d at 228.
Relator
has not demonstrated that his motion for default judgment has been presented to
the trial court for ruling. The mandamus record contains no notice of hearing
or notice of submission. The paperwork that accompanies relator=s mandamus petition bears no file
stamp, and relator has not provided a certified-mail return card reflecting the
court=s receipt of relator=s motion.  Nor has relator produced
correspondence from the Harris County District Clerk indicating that the
default-judgment motion was presented to the trial court.  See, e.g., In re
Peters, No. 14-08-00744-CV, 2008 WL 4390186, at *1 (Tex. App.CHouston [14th Dist.] Sept. 30, 2008,
orig. proceeding) (mem. op.).  Because the record does not show that the motion
was before the trial court, we cannot decide that the trial court abused its
discretion in allegedly failing to rule on the motion.  See Chavez, 62
S.W.3d at 228.
Accordingly,
we deny the petition for writ of mandamus.
PER
CURIAM
Petition Denied, and Memorandum Opinion filed,
December 23, 2008.
Panel consists of Justices Anderson and Frost, and
Senior Justice Hudson.*
Do Not Publish.
 




            [1]  The respondent
is the Honorable Tracy Christopher, presiding judge of the 295th District Court
of Harris County.


            * 
Senior Justice J. Harvey Hudson sitting by assignment.


