                                   NO. 12-11-00036-CV

                        IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

IN RE:                                         §

JAMES ALLEN LEE,                               §               ORIGINAL PROCEEDING

RELATOR                                        §

                                   MEMORANDUM OPINION
                                       PER CURIAM
       In this original proceeding, Relator James Allen Lee seeks a writ of mandamus requiring
the trial court to rule on his motion for ―Enforcement of Possessory Rights and for Contempt.‖
We deny the petition.
       To obtain a writ of mandamus compelling the trial court to consider and rule on a motion,
a relator must establish that the trial court (1) had a legal duty to perform a nondiscretionary act,
(2) was asked to perform the act, and (3) failed or refused to do so. In re Molina, 94 S.W.3d
885, 886 (Tex. App.—San Antonio 2003, orig. proceeding). Generally, a trial court has a
nondiscretionary duty to consider and rule on a motion within a reasonable time. In re Thomas,
No. 12–05–00261–CV, 2005 WL 2155244, at *4 (Tex. App.—Tyler Sept. 7, 2005, orig.
proceeding) (mem. op.). But a trial court cannot be expected to consider a motion not called to
its attention.   See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.
proceeding).     Merely filing a motion with the district clerk does not impute the clerk’s
knowledge of the filing to the trial court. Id. at 228. Therefore, it is incumbent upon the relator
to establish that the motion has been called to the trial court’s attention. See id.
       The record in this proceeding includes a copy of one letter from Lee to the district clerk
relating to the status of his motion. However, we cannot conclude from the record that Lee has
requested a hearing on the motion or that the trial court has otherwise been made aware of the
motion. Consequently, Lee has not shown that he is entitled to mandamus relief. See In re
Chavez, 62 S.W.3d at 228. Accordingly, Lee’s petition for writ of mandamus is denied.
Opinion delivered March 16, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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