NO. 07-04-0465-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A OCTOBER 15, 2004

______________________________ IN RE R. WAYNE JO HNSON, R ELATOR

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBE LL, JJ.

MEMORANDUM OPINION ON MOTION FOR RECUSAL AND PETITION FOR WRIT OF MANDAMUS
Relator R. Wayne Johnson brings this second petition for writ of mandamus directed againstHonorable J. Blair Cherry, judge of the 72 nd District Court of Lubbock County, with respectto a suit relator brought in that cou rt. Relator has contemporaneously filed a motion to recuse this court in this proceeding. We den y both the motion and petition. Relator, a Texa s prison i nmate acti ng pro se , filed s uit agai nst Texa s Tech Un iversity and Pat Campbell, which suit wa s assigned cause number 2004-526,504 in the 72 nd DistrictCourt. On June 22, 2004, the defendants answered and gave notice that relator had been fou nd to be a vexati ous liti gant und er C hapter 1 1 of the Civil Practice and Remedies Code (Vernon 2002). On June 25, 2004, the trial court rendered an order dismissing the suit for failure to comply wit h the pro cedural requireme nts appl icable to-2-

vexatious litigants. No appeal wasperfected from that order. Relator filed his first petition for writ of ma ndamus i n this co urt o n August 5, 2004. We denied the petition, finding relator failed to dem onstrate the a bsence of an adeq uate reme dy by app eal. See In re Johnson , No. 07-04-416-CV (Tex.App.–Amarillo, August 23, 2004)(orig. proceeding) (per curiam). Relator filed the present petition on September 15, 20 04.
We initially address relator’s m otion torecuse, w hich see ks recusa l of the e ntire court. Relator’s stated grounds for the co urt’s recu sal incl ude state ments that the court has ignored the law in “several pa st man damus actions,” that our August 23 opinion demonstrates a bias and prejudice ag a inst him, and that our failure to follow the law contraven es the justices’ oaths of office, the Code of Judicial Conduct and our duty t o follow t he requi rements of the United States Constitution rather than contrary procedural rules. Relator’s motion refers to the court as a whole. It does not ask for the recusal of one
or more individual justices of the court, nor does it assert that grounds exist for the recusal of any ind ividual justice of this cou rt. See Tex. R. App. P. 1 6.2; Tex

. R. Civ. P

. 18b. Compare

McCullou gh v. Kitzman , 50 S.W.3d 87 (Tex.App.–Waco 2001, pet. denied) (motion to

disqual ify or rec use “each of the jus tices” of the court)

. Relator’s motion does not prope rly invo ke the pro cedures g overning recusal of justice s, see Rule of Appell at e Procedur

e 16.3, a nd is de nied.
A writof mandamus issues only to correct a clear abuseof discretion or the violation of a duty i mposed by

law whe n there i s no othe r adequa te remedy at law. Canadian Helico pt ers Ltd. v. Wittig , 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding). It is the relator’s burden to show entitlement to the reli ef being requeste d. See generally Johnson-3-

v. Fourth Court of Appeals , 700 S.W.2d 916, 917 (Tex. 1985)(orig. proceeding). Relator’s petition seeks a writ requ iring the trial co urt to rul e on a mo tion tostrike t he defendant’s pleadings, on which the petition contends the court improperly failed to rule before signing the judgment of dismissal. While a trial court’s consideration ofand ruling on a properlyfiled and pending motion are said to be min isterial acts, a p etition f or mandam us to requ ire the trial co urt to rul e must dem onstrateboth that the motion has been brought to the court’s attention and the court’s r efusal to rule. See Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979) (orig. proceedi ng); Ex parte Bates , 65 S.W.3 d 133, 13 5 (Tex.A pp.– Amarillo 2001) (orig. proceedi ng). See also Metzger v. Sebek

, 892 S.W.2 d 20, 49 (Tex.App .–Housto n [1 st Dist.] 1994, writ denied) (court not required to consider a motion not called to its attention). Relator’s petition assertssimply that he filed the motion to strike and thetrial court did not rule on it. Merely that a motion is filed w ith a cou rtclerk does not demonstrate that it has been brought to the jud ge’s atte ntion. See In re Chavez , 62 S.W.3d 225, 228 (Tex.App.–Amarillo 2001) (o rig. proceeding). The record does not show, and relator does nota llege, that he brought the motion to strike to the court’s attention before entry of the judgmentof dismissal, or by motion for new trial or other po st-judgmen t motion after its entry. See Tex. R. Civ. P. 3 29b. Further, the recor

d before us shows the dismissal of trial court cause number 2004- 526,504 occurred on June 25, 2004, after defendants’ noticeconcerning relator’s status as
a vexatio us litig ant was f iled. A s noted, t he judgme nt of the trial cou rt, which relator did not appeal, dismissed the suit beca use of rel ator’s failure to comply with the procedural requireme nts app licable to vexatious litigants under Chapter 11 of the Civil Practice and-4-

Remedies Code. Relator’s petition for mandamuscomplai ns of the court’s fa ilure tostrike pleadings filed ea rlier in the liti gation. Such ple adings could have had no bearing on the court’s dismissal of relator’s suit under Chapter 11. We have previously determined that relator had an adequate remedy by appeal for the dismissal. His present petition does not demonstra te otherwise. For these reasons, relator’s petition does not show entitlem ent to a writ of mandamus, and is d enied.

Per Curiam