                                  NO. 07-08-0271-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                   AUGUST 7, 2008

                         ______________________________


                        IN RE BOBBY DEON POLK, RELATOR

                        _______________________________

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


                              MEMORANDUM OPINION


      By this original proceeding, Relator, Bobby Deon Polk, seeks a writ of mandamus

against the Honorable Tom A. Neely, deceased, and former judge of the 46th District Court

of Wilbarger County, and Nathaniel Quarterman, Director of the Texas Department of

Criminal Justice. Relator contends that Judge Neely failed to issue a writ of habeas

corpus. He presents numerous complaints against Judge Neely stemming from a 1996

conviction for unlawful possession of a controlled substance. Although named as a

respondent, no allegations are made against Quarterman in Relator’s petition for writ of

mandamus. For the reasons expressed herein, we deny Relator’s petition.


      According to exhibits accompanying Relator’s petition, he executed an application

for a writ of habeas corpus on May 12, 2008, which was filed by the District Clerk of
Wilbarger County on May 19, 2008. The crux of his complaints are that at the time he

committed the offense for which he was convicted and sentenced to eleven years

confinement, he was entitled to mandatory supervision. He also complains that his

sentence, which included twenty-two days back time, was improperly calculated as it did

not include credit for “street time.”


       Given Judge Neely’s passing more than a year ago, we find that Relator’s petition

for writ of mandamus against him is rendered moot. As no allegations are made against

Quarterman, we likewise render Relator’s petition moot in that respect.


       We acknowledge that Rule 7.1(a)(1) of the Texas Rules of Appellate Procedure

provides that upon the death of a party in a civil case the appeal may proceed as if all

parties are alive. However, the rule applies to cases in which a trial court has rendered

judgment and there has been no final disposition of an appeal. This is an original

proceeding without a trial court having rendered judgment.           We decline to apply

subparagraph (a)(1). Additionally, Rule 7.1(b) provides for substitution of a party but only

for reasons other than death. Thus, it does not apply either.


       We further acknowledge that, when a public officer is a party in an official capacity,

Rule 7.2 of the Texas Rules of Appellate Procedure provides for the automatic substitution

of that officer’s successor when the named party ceases to hold office before the original

proceeding is finally disposed. Likewise, we acknowledge that in cases involving an

original proceeding under Rule 52, Rule 7.2(b) mandates that this Court abate the


                                             2
proceeding to allow the successor to reconsider the original party’s decision. (Emphasis

added). Given the fact that Judge Neely never considered Relator’s petition in the first

place, we also find Rule 7.2(b) to be inapposite.


       When a petition for writ of mandamus is filed, the relator has the burden to show

entitlement to the relief sought. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917

(Tex. 1985) (orig proceeding).     A 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. 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). Showing that a motion was filed with

the clerk does not constitute proof that the motion was presented or brought to the trial

court’s attention with a request for a ruling.      In re Chavez, 62 S.W.3d 225, 228

(Tex.App.–Amarillo 2001, orig. proceeding).


       Assuming a motion is properly pending before a trial court, the act of considering

and ruling upon it is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158

(Tex. 1992). However, the trial court has a reasonable time within which to perform that

ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San

Antonio 1997, orig. proceeding).


       Relator’s application for a writ of habeas corpus was filed on May 19, 2008.

Assuming, arguendo, that Relator’s application was presented or brought to the attention


                                            3
of the Honorable Dan Mike Byrd, current judge of the 46th District Court of Wilbarger

County, we conclude that a reasonable period of time in which to rule on the application

has not passed. The limited record before us does not show entitlement to the relief

Relator seeks.


      Consequently, Relator’s petition for writ of mandamus is denied.



                                               Patrick A. Pirtle
                                                   Justice




                                           4
