                                  NO. 07-04-0006-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  JANUARY 20, 2004

                         ______________________________


                         IN RE BILLY L. HUGHES, RELATOR

                       _________________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION
                      ON PETITION FOR WRIT OF MANDAMUS


      Relator Billy L. Hughes has filed a petition requesting this court to issue a writ of

mandamus directing the Honorable Lee Waters, Judge of the 223rd District Court, to

consider and rule on two motions filed in the divorce suit underlying this proceeding. For

the reasons stated below, we deny the requested petition.


      According to relator’s petition, Judge Waters rendered a decree of divorce dissolving

the marriage of relator and Carla Sue Hughes. Relator filed a motion for new trial and

motion to modify and amend the divorce decree on April 21, 2003. In August and
November relator wrote1 to the district court clerk inquiring about the status of the motions.

In each instance, the clerk responded the court had not ruled on the motions and they were

still pending.2 Without taking any other action to obtain a ruling on his motions, appellant

initiated this original proceeding.


       Relator has correctly stated the applicable standards for issuance of a writ of

mandamus and we shall not repeat them here. See generally Canadian Helicopters Ltd.

v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding). Relator cites Barnes v.

State, 832 S.W.2d 424 (Tex.App.–Houston 14th Dist. 1992) (orig. proceeding), among other

cases, for the propositions that a trial court has no discretion to refuse to consider and act,

within a reasonable time, on a motion properly before it and that mandamus is the proper

remedy for a failure to do so. Id. at 426.


       There are two reasons why relator’s petition must be denied. First, the trial court

has not refused to rule on relator’s motions, and secondly, relator’s petition does not meet

the requirements for such pleadings set out in Rule of Appellate Procedure 52. In Stoner

v. Massey, 586 S.W.2d 843 (Tex. 1979), our Supreme Court articulated three elements

necessary to show entitlement to a writ of mandamus: first, a legal duty to perform a

nondiscretionary act; second, a demand for performance; and third, refusal of that demand.

Id. at 846.


       1
     Relator’s petition shows he is an inmate, which we mention only to explain why his
communication with the district clerk was through correspondence.
       2
        These responses may not have been entirely accurate. By virtue of Rule of Civil
Procedure 329b(c) the motions likely were overruled by operation of law 75 days after
rendition of the decree of divorce and were, therefore, no longer pending.

                                              2
       The opinion in Barnes illustrates the importance of the second element of Stoner.

In Barnes, the relator sought a writ of mandamus directing the trial court to rule on his

motions. Id. at 425. While agreeing the trial court had a duty to rule within a reasonable

time, the court noted:


       The relator has not provided us with a record that shows that, after he filed
       his motions, relator asked the trial court for a hearing and ruling on his
       motions and the trial court refused to hold a hearing and to rule. From this
       record, it appears the relator did not take any action to alert the trial court that
       it had not yet considered his two motions.


Id. at 426. Based on this failure, the court denied the petition. Id.


       By contrast, in Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268 (Tex.App.–San

Antonio 1997) (orig. proceeding), also cited by relator, the court conditionally granted a writ

of mandamus where the relator had made repeated written requests to the court

coordinator to schedule hearings on its motion, requests that were expressly denied, and

the trial judge expressly stated his refusal to rule on motions. Id. at 269. Here, as in

Barnes, there is nothing to indicate relator has brought his motions to the attention of the

trial court3 by requesting a hearing or otherwise, or that such request has been denied.

This omission requires denial of relator’s petition. 832 S.W.2d at 426.


       The second reason relator’s petition must be denied is that it fails to meet the

mandatory requirements of Rule of Appellate Procedure 52. Rule 52.3(j)(1) requires the



       3
        That a document is filed with a court’s clerk does not necessarily mean that the
judge is aware of it. See In re Chavez, 62 S.W.3d 225, 228 (Tex.App.–Amarillo 2001) (orig.
proceeding).

                                                3
petition to include a certified or sworn copy of any “document showing the matter

complained of.” As applied to this proceeding, the rule required relator to provide us with,

at a minimum, such copies of the motions forming the basis of his complaint. Without

them, this court could not conclude the documents were properly before the trial court. See

Barnes, 832 S.W.2d at 427. Relator’s petition for writ of mandamus is denied.




                                                 James T. Campbell
                                                     Justice




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