Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 4,
2011.




                                         In The

                      Fourteenth Court of Appeals
                                     ____________

                                  NO. 14-11-00760-CV
                                    ____________

                        IN RE GEORGE A. BUTLER, Relator


                             ORIGINAL PROCEEDING
                               WRIT OF MANDAMUS
                                  164th District Court
                                 Harris County, Texas
                           Trial Court Cause No. 2009-67075



                     MEMORANDUM                      OPINION

       On September 6, 2011, relator George A. Butler filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52.
Relator complains that respondent, the Honorable Alexandra Smoots-Hogan, presiding
judge of the 164th District Court of Harris County, has not ruled on his motion for
rehearing filed April 14, 2011. According to relator’s petition, on March 25, 2011, the
trial court granted the special exceptions and motion to dismiss filed by the real party in
interest, Rolls-Royce Energy Systems, Inc.1 Relator asserts that he timely filed a motion
for rehearing, and the trial court has not ruled on his motion.

        Mandamus is an extraordinary remedy that will issue only if (1) the trial court
clearly abused its discretion and (2) the party requesting mandamus relief has no adequate
remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004).
A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the
law correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005).
The relator must generally establish three prerequisites for the issuance of a writ of
mandamus: (1) the trial court had a legal duty to act; (2) there was a demand for
performance; and (3) there was a refusal to act. In re Smith, 263 S.W.3d 93, 96 (Tex.
App.—Houston [1st Dist.] 2006, orig. proceeding).

        When a motion is properly filed and pending before a trial court, the act of giving
consideration to and ruling on that motion is a ministerial act, and mandamus may issue to
compel the trial court to act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.
App.—San Antonio 1997, orig. proceeding). To establish that the trial court refused to
rule on a pending motion, the relator must provide a record that shows that the relator asked
the trial court for a hearing and a ruling on his motion and the trial court refused to hold a
hearing and to rule. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st
Dist.] 1992, orig. proceeding). Simply showing that a motion was filed with the clerk
does not constitute proof that the motion was brought to the trial court’s attention or that it
was presented to the trial court with a request for a ruling. Id.; In re Davidson, 153
S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding).



1
   Relator has not included a copy of the trial court’s dismissal order in the mandamus record. The
dismissal order may be final and appealable, but this court cannot establish finality on the record before us.
Mandamus is inappropriate when there is an adequate remedy at law. See Walker v. Packer, 827 S.W.2d
833, 839 (Tex. 1992).
                                                      2
       The mandamus record before this court does not contain any evidence that relator
presented his motion for rehearing to the trial court with a request for a ruling. Relator has
not established that he is entitled to mandamus relief. Accordingly, we deny relator’s
petition for writ of mandamus.


                                           PER CURIAM




Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.




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