                                     NO. 07-08-0105-CV

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                    JUNE 5, 2008
                           ______________________________

                           IN RE DAVID MATTHEW LAYTON
                         _________________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                        ON PETITION FOR WRIT OF MANDAMUS


       Relator, David Matthew Layton, has filed a Petition for Writ of Mandamus seeking

an order from this court directing the Honorable Hal Miner to “hold a hearing on said Motion

on Interlocutory appeals (sic) in cause number 94,288-A . . . .” The motion, which was filed

with the district clerk on June 11, 2007, requests the trial court to issue an order authorizing

the written deposition of Warren Clark, Layton’s criminal trial counsel, to investigate a

potential claim of legal malpractice relating to that representation. Layton contends that

he is entitled to relief because Judge Miner “is abusing his discretion by sitting on” Layton’s

motion. We deny the petition.


       A trial court has a ministerial duty to consider and rule on motions properly filed and

pending before the court and mandamus may issue to compel the judge to act. Safety-

Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San Antonio 1997, orig.
proceeding) (citing O’Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex.App.–Tyler 1993,

orig. proceeding). However, the trial court is afforded a reasonable time in which to

perform this ministerial duty. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.–Houston

[1st Dist.] 1992, orig. proceeding). Whether the trial court has failed to act within a

reasonable time is dependent upon the circumstances of the case. Id. To establish

entitlement to mandamus relief, the relator must establish that the trial court had a legal

duty to perform a non-discretionary act, relator made demand for performance, and the

court refused to perform. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). However,

a court is not required to consider a motion not called to its attention. Metzger v. Sebek,

892 S.W.2d 20, 49 (Tex.App.–Houston [1st Dist.] 1994, writ denied).


       Reviewing the documents Layton attached to his petition, nothing establishes that

the motion was brought to the attention of the trial court. At best, the documents attached

to Layton’s petition show that his motion was filed with the district clerk on June 11, 2007.

Filing a motion with the district clerk does not establish that the motion was brought to the

attention of the trial court because the clerk's knowledge of the motion is not imputed to

the trial court.   In re Chavez, 62 S.W.3d 225, 228 (Tex.App.–Amarillo 2001, orig.

proceeding). Because Layton’s petition fails to demonstrate that his motion has been

actually brought to the trial court’s attention or presented for a ruling, we must deny

Layton’s petition for writ of mandamus. See In re Posey, No. 07-03-0518-CV, 2004

Tex.App. LEXIS 695, at *2-*3 (Tex.App.–Amarillo 2004, orig. proceeding).




                                             2
Layton’s petition for writ of mandamus is denied.




                                         Mackey K. Hancock
                                             Justice




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