## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 13

- 00044

- CV

IN RE : ROBERT TROY MCCLURE

Original Mandamus Proceeding

Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Chief Justice Morriss2 

### MEMORANDUM OPINION Robert Troy McClure has petitioned this Court for mandamus relief alleging that his personal injury action h as been stalled by a defense motion asking that McClure be named a vexatious litigant , combined with the trial court ’ s failure to set a hearing on that motion and to issue a bench warrant to allow McClure to attend such a hearing. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 11.053(a) (West 20 02 ). For want of a requ i re d mandamus record, we deny the requested relief.

Mandamus relief will be granted only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the a bsence of a clear and adequate remedy at law. Walker v. Packer , 827 S.W.2d 833, 839

– 40 (Tex. 1992) (orig. proceeding) ; see In re Columbia Med. Ctr. of Las Colinas , 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding)

. T he relator must provide this Court wi th a record sufficient to establish the right to mandamus relief. Walker , 827 S.W.2d at 837; In re Pilgrim ’ s Pride Corp ., 187 S.W.3d 197, 198

– 99 (Tex. App.

— Texarkana 2006, orig. proceeding); see T EX
. R. A PP
. P . 52.3. McClure has provided this Court with no record. Among the unprovided documents that might support his request are the claimed motions to hold a hearing or to issue a bench warrant and evidence that the motions were brought to the trial court ’ s attention and that rulings were requested. 1 Wit hout those items, this Court cannot determine if or when such motions were

1 Consideration of a motion that is properly filed and before the court i s a ministerial act. State ex rel. Curry v. Gray , 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding)

. T he moving party must show , however, that the trial court received, was aware of, and was asked to rule on the motion. In re Grulkey , No. 14

- 10

- 00450

- CV, 2010 WL 2171408, at *1 (Tex. App.

— Houston [14th Dist.] May 28, 2010, orig. proceeding) (mem. op.) (per curiam)3 actually filed and if all conditions were actually met. 2 McClure has also supplied no copy of the claimed defense motion to declare McClure a vexatious litigant, which would have t riggered the need for a hearing under Section 11.053(a) of the Texas Civil Practice and Remedies Code

. See
T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 11.051 (West 20 02 )

. McClure has failed to demonstrate that he is entitled to the extraordinary remedy of mandamus relief. We deny his petition.

Josh R. Morriss, III Chief Justice Date Submitted: May 14 , 2013 Date Decided: May 15 , 2013

( citing In re Villarreal , 96 S.W.3d 708, 710 (Tex. App.

— Amarillo 2003, orig. proceeding)) ; s ee also In re Blakeney , 254 S.W.3d 65 9, 662 (Tex. App.

— Texarkana 2008, orig. proceeding) ( “ 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. ” ).

2 A trial court has a ministerial duty to consider and rule on a properly filed and pending motion within a reasonable time. See In re Shaw , 175 S.W.3d 901, 904 (Tex. App.

— Texarkana 2005, orig. proceeding).