

NO. 12-10-00148-CR
 
IN THE COURT OF APPEALS          
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
IN RE:                                                            §
 
ARDIE DEAN FISHER,                              §                      ORIGINAL
PROCEEDING
 
RELATOR                                                                 §                      



MEMORANDUM
OPINION
PER
CURIAM
            In
this original proceeding, Relator Ardie Dean Fisher seeks mandamus relief against
the respondent trial judge alleging that the trial court has failed to rule on
his motion for a writ of audita querela.  He alleges that a reasonable
time has lapsed and requests a writ of mandamus directing the trial court to
rule on the motion.
            A
trial court has a reasonable time to perform the ministerial duty of
considering and ruling on a motion properly filed and before the court.  In
re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig.
proceeding).  But that duty generally does not arise until the movant has
brought the motion to the trial court’s attention.  See id.  
Mandamus will not lie unless the movant shows the trial court was aware of the
motion but has failed or refused to rule on it within a reasonable time.  See
id.
The
record reveals that Relator mailed his motion to the trial court clerk by
certified mail, return receipt requested, on August 10, 2009, and that the motion
was received by the clerk’s office on August 12, 2009.  The record also
includes two copies of a document in the form of a pleading in which “TO THE
HONORABLE JUDGE OF SAID COURT:” appears in the center of the page below the
caption.  The certificate of service recites that the document was mailed to
the trial court at its mailing address on October 19, 2009.  However, the copy
is not file marked, and the record contains no proof of receipt by the trial
court.  Without this proof, we cannot say that Relator’s motion has been
brought to the trial court’s attention.  The mere filing of a motion with the
clerk does not impute knowledge of the motion to the trial court.  See Chavez,
62 S.W.3d at 228.
Because
Relator has not furnished a record showing that the trial court has refused or
failed to rule on his motion within a reasonable time after receiving notice of
the motion, he has not met the prerequisites to mandamus relief.  Accordingly,
we deny his petition for writ of mandamus.
Opinion delivered July 30, 2010.
Panel consisted of
Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(DO NOT PUBLISH)

