1 

### NUMBER13 - 11 - 00 731 - CV 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

IN RE OVIDIO GARCIA JR. AND E USTORGIO GUZMAN RESENDEZ

On Petition for Writ of Mandamus
.


## MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion Per Curiam 1

R elator s , Ovidio Garcia Jr. and E ustorgio Guzman Resendez, pro se, filed a petition for writ of mandamus in the above cause on November 21, 2011

. Relators allege that the trial court has failed to timely rule on a pending motion to compel issuance of citation

. We strike the petition for writ of mandamus in part and deny the petition for writ of mandamus in part.

1 See T EX

. R. A PP

. P . 52.8(d) ( ― When denying relief, the court may hand down an opinion but is not required to do so. ‖ ); T EX

. R. A PP

. P . 47.4 (distinguishing opinions and memorandum opinions).2 I. As an initial matter, we note that the petition was filed by Ovidio Garcia, Jr., who is not an attorney and is appearing pro se. Accordingly, Garcia may not seek relief on behalf of Resendez. See, e.g ., T EX

. G OV ' T C ODE A NN . § 81.101

- .102 ( West 2005) (def ining unauthorized practice of law); T EX

. P EN

. C ODE A NN . § 38.123 (West 2003) (explaining that the una u thorized practice of law is a Class A misdemeanor); Crain v. The Unauthorized Practice of Law Comm. of the Sup.Ct. of Tex ., 11 S.W.3d 328, 332

– 34 (Tex. A pp.
— Houston [1st Dist.] 1999, pet. denied) (explaining that a person who is not a licensed attorney may not represent other persons in legal matters). We strike the petition for writ of mandamus insofar as it purpo rts to raise claims for Resende z. We

now turn to the petition for writ of mandamus as it pertains to Garcia. II. To be entitled to mandamus relief, Garcia must establish both that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a ministerial a ct not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). If Garcia fails to meet both of these requirements, then the petition for writ of mandamus should be denied. See id

. It is Garcia’ s burden to properly request and show entitlement to mandamus relief. Barnes v. State , 832 S.W.2d 424, 426 (Tex. App.

— Houston [1st Dist.] 1992, orig. proceeding) ( ― Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks. ‖ ). In addition to other requirements, Garcia must3

include a statement of facts supported by citations to ― com petent evidence included in the appendix or record, ‖ and must also provide ― a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record

. ” See generally T EX

. R. A PP

. P . 52.3. Garcia must f urnish an appendix or record sufficient to support the claim for mandamus relief

. In re Blakeney , 254 S.W.3d 659, 661 (Tex. App.

— Texarkana 2008, orig. proceeding); s ee T EX

. R. A PP

. P

. 52.3(k) (specifying the required contents for the appendix); id. R. 52.7(a) (specifying the required contents for the record). The c onsideration of a motion that is properly filed and before the court is a ministerial act. See State ex rel. Hill v. Court of Appeals for the Fifth Dist ., 34 S.W.3d 924, 927 (Tex. Crim. Ap p. 2001) (orig. proceeding); State ex rel. Curry v. Gray , 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding) (op. on reh ’ g). A trial court is required to consider and rule on a properly filed and pending motion within a reasonable time. See In re Blakeney , 254 S.W.3d 659, 663 (Tex. App.

— Texarkana 2008, orig. proceeding); In re Hearn , 137 S.W.3d 681, 685 (Tex. App.

— San Antonio 2004, orig. proceeding); In re Keeter , 134 S.W.3d 250, 252

- 53 (Tex. App.

— Waco 2003, orig. proceeding); In re Chavez , 62 S.W.3d 225, 228 (Tex. App.

— Amarillo 2001, orig. proceeding)

. The determination regarding what constitutes a reasonable period of time to rule on a motion is dependent upon several fact or s, including the trial court ’ s actual knowledge of the motion, its ov ert refusal to act, the state of the court ’ s docket, and the existence of other judicial and administrative matters which must be addressed first. See In re Blakeney

, 254 S.W.3d at 661; Ex parte Bates , 65 S.W.3d 133 (Tex.4

App.

— Amarillo 2001, orig. proceed ing). To obtain mandamus relief for the refusal to rule, a relator must establish: (1) the motion was properly filed and has been pending for a reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to rule. See In re Sarkissian , 243 S.W.3d 860, 861 (Tex. App.

— Waco 2008, orig. proceeding); In re Hearn , 137 S.W.3d at 685; In re Chavez , 62 S.W.3d at 2 28. Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought t o the trial
court ’ s attention or presented to the trial court with a request for a ruling. See In re Davidson , 153 S.W.3d 490, 491 (Tex. App.

— Amarillo 2004, orig. proceeding); In re Hearn , 137 S.W.3d at 685; In re Chavez , 62 S.W.3d at 228

. In the instant case, Garcia has not met his burden to obtain mandamus relief. See State ex rel. Young , 236 S.W.3d at 210.
III. T he Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion t hat the petition for writ of mandamus should be struck in part and denied in part. Accordingly, the petition is struck, in part, insofar as it purports to raise claims on behalf of Resendez, and denied, in part, insofar as it raises claims on behalf of Ga rcia. See T EX

. R. A PP

. P . 52.8. PER CURIAM

D elivered and f i led the 22nd day of November , 2011.