                                     NO. 07-04-0441-CV

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                   SEPTEMBER 30, 2004

                           ______________________________


                       IN RE MICHAEL LOU GARRETT, RELATOR

                          _______________________________

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


                                 MEMORANDUM OPINION


       Relator Michael Lou Garrett requests issuance of writ of mandamus directing the

District Clerk of Potter County to locate, file and bring to the attention of the District Judge

of the 181st District Court a Motion for Temporary Restraining Order and Preliminary

Injunction. Relator also requests that the district judge be included in the writ of mandamus

and that we direct the judge to immediately rule on the Motion. We dismiss as to the

District Clerk and decline to issue writ to the District Judge.


       Pursuant to TEX . GOV’T . CODE ANN . § 22.221 (“TGCA”), a court of appeals has

jurisdiction to issue writs of mandamus (1) to enforce its jurisdiction; or (2) against certain

judges of or acting within the district of the court of appeals. TGCA §§ 22.221(a),(b).
       Relator does not claim that his petition seeks relief designed to enforce this court’s

jurisdiction. Thus, this court does not have jurisdiction to issue a writ of mandamus to the

district clerk, and relator’s petition seeking a writ directed to the District Clerk of Potter

County is dismissed for want of jurisdiction.


       As to relator’s seeking issuance of a writ of mandamus directed to the judge of the

181st District Court, relator must satisfy three requirements to show entitlement to the writ:

(1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. See

Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). 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). Even showing that a motion was filed with the court

clerk does not constitute proof that the motion was brought to the trial court’s attention or

presented to the trial court with a request for a ruling. See In re Chavez, 62 S.W.3d 225,

228 (Tex.App.--Amarillo 2001) (orig. proceeding).


       Relator does not assert that demand has been made upon the judge of the 181st

District Court for action on the motion referenced, or that the judge has refused to act.

Accordingly, the petition for writ of mandamus as to the district judge is denied.




                                                   Phil Johnson
                                                   Chief Justice




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