                                       NO. 12-09-00051-CR

                            IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS
                                                           §

IN RE: MICHAEL KENNEDY,                                    §    ORIGINAL PROCEEDING
RELATOR
                                                           §

                                         MEMORANDUM OPINION
         Michael Kennedy filed a pro se petition for mandamus relief asking us to direct the trial court
to rule on his motion to dismiss his appellate counsel.
         Before mandamus relief may issue to require a trial court to rule on a motion, the relator must
establish that the court was asked to rule and failed or refused to do so within a reasonable time. See
Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.–San Antonio 1997, orig.
proceeding). The record in this case does not include any correspondence or other document in
which Kennedy calls the trial court's attention to the motion or requests that a hearing be set to
determine its merit. The trial court cannot be faulted for doing nothing when it was not aware of the
need to act. In re Villareal, 96 S.W.3d 708, 710 (Tex. App.–Amarillo 2003, orig. proceeding). We
cannot simply assume that the trial court knew of its duty to act and neglected to perform it. Id.
Accordingly, Kennedy's petition for writ of mandamus is denied.

                                                                      BRIAN HOYLE
                                                                          Justice
Opinion delivered February 25, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)
