NO. 07-03-0426 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A OCTOBER 10, 2003

______________________________ IN RE B ILLY L. HUG HES, R ELATOR

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ.
MEM ORAN DUM OP INI ON Bythis ori ginal proceeding, relator Billy L. Hughes, an inmate proceeding pro se and in fo rm a p aupe ris , seeks a w rit of mandam us to com pel the Honorabl e Lee W aters, Presiding Judge of the 223rd District Court of Gray C ounty, to rule on his m otion for new trial and m otion to m odify and am end his divorce decree in cause num ber 30598. For the following reasons, relator’s petition for a w rit of mandam us m ust be denied.
Relator mu st satisfy

three requirements

to establish his entitlement to the issuance of a writ of m andam us, to-wit: (1)a legal duty to perform ; (2) a dem and for perform ance; and (3)a re fus al t o act. Stoner v. M assey, 586 S. W .2d 843, 846 (Tex . 1979). When a mot ion is properly filed and pending before a trial court, the act of considering and ruling2

up on the m otion is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 15 8 (Tex. 1992). However, the trial court has a reasonable tim e within which to perform that ministerial duty. Safet y-Kleen Corp. v. Garcia, 9 45 S.W.2d 268, 269 (Tex.App.–S an An ton io 1997, orig. proceeding). Whether a reasonable peri od of time has lapsed i s dependenton the circumst ances of each case. B arnes v. State, 832 S.W.2d 424, 426, (Tex.App.–H ouston [1stDist.] 1992, orig . proceedi ng). Other factor s are infl uential such as the trial court’ s actu al know ledge of t he m otion, its overt refusal to act, the state of its docket, and oth er j udic ial a nd a dm inistrative d uties w hich m ust be address ed. In re Villarreal, 96 S.W .3d 708, 711 (Tex.App. –Am arillo 2003, orig. proceeding). Further, the partyrequesting relief must provide a su fficient record to establish his entitlement to manda mus

relief. W alker v. Packer, 827 S .W .2d 833, 837 (Tex . 1992); see also In re Bates , 65 S .W.3d 133, 135 (Tex.App.–A m arillo 2001, orig. proceed ing). By his petition, relator alleges he filed hi s m otions on April 21, 2003, and on August 11, 2003, he w rote the District C lerk inquiring about the status of the m otions. He further asserts that on August18, 2003, he was notified by the District Clerk that the trial court had not ruled on his motions.
Relator’s pet ition is not accom panied by certified or sworn copies of t he motions he filed nor by any copies of corres pondence w ith the District Clerk. See Tex. R. App. P

. 52.3( j)(1)(A) & (j )(2). Relator has not m et his burden t o provi de a suf ficient record dem ons trating tha t pr

ope rly f iled m otio ns h aveawaite d dis pos ition for an u nre aso nab le3

length of tim e. Also , we decline tohold that the tri al court’s f ailu re to rule on relator ’s mot ions within four m onths of being filed constitutes an unreaso nable delay. More over, relator has not established he dem anded perform ance nor the trial court’s refusal to act. Stoner , 586 S.W.2d at 846. Accordingly, relator’s petition for writ of m andam us is denied.
Don H. Reavis Justice