### IN THE TENTH COURT OF APPEALS

No. 10
- 14
- 00027
- CR
IN RE DAVID ROSARIO
Original Proceeding

MEMORANDUM OPINION
In this original proceeding, Relator David Rosario seeks mandamus relief in the form of compelling the Respondent trial court judge to rule on Rosario’s motion for speedy trial. 1 “A court with mandamus authority ‘will grant mandamus relief if relator can demonstrate that the act sought to be compelled is purely ‘ministerial’ and that relator has no other adequate legal remedy.’” In r e Piper, 105 S.W.3d 107, 109 (Tex. App.

—

1 Rosario’s petition for writ of mandamus has several procedural deficiencies

. See T EX

. R. A PP
. P. 52 .3

. It does not include the certification required by Rule of Appellate Procedure 52.3(j). See T EX

. R. A PP
. P. 52.3(j). The petition lacks proof of service on the Respondent trial judge and on the Coryell County District Attorney, a Real

- Party

- in

- Interest

. See id. 9.5, 52.2. A copy of all documents presented to the Court must be served on all parties to the proceeding and must contain proof of service. Id. 9.5. Because of our disposition and to expedite it, we will implement Rule 2 and suspend these rules. Id. 2.In re Rosario Page 2

Waco 2003, orig. proceeding) (quoting State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 197

- 99 (Tex. Crim. App. 2003) (orig. proceeding)). C onsideration of a motion properly filed
and before the court is ministerial. State ex rel. Hill v. Ct. of Apps. for the 5th Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).

Mandamus may issue to compel a trial court to rule on a motion which has been pending before the court for a reasonable period of time. Se e In re Hearn , 137 S.W.3d 681, 685 (Tex. App.

— San Antonio 20 04, orig. proceeding); In re Keeter , 134 S.W.3d 250, 252

- 53 (Tex. App.

— Waco 20 03, orig. proceeding); In re Chavez , 62 S.W.3d 225, 228 (Tex. App.

— Amarillo 20 01, orig. proceeding); Barnes v. State , 832 S.W.2d 424, 426 (Tex. App.

— Houston [1st Dist.] 19 92, orig. proceeding); see also In re Shredder Co. , 225 S.W.3d 676, 679 (Tex. App.

— El Paso 20 06, orig. proceeding). To obtain mandamus relief for such refusal, a relator must establish: (1) the motion w as 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 Hearn , 137 S.W.3d at 685; Keeter , 134 S.W.3d at 252; Chavez , 62 S.W.3d at 228; Barnes , 832 S.W.2d at 426; see also Shredder Co. , 225 S.W.3d at 679. The mere filing of a motion with a trial court clerk does not equate to a request that the trial court rule on the motion. See Hearn , 137 S.W.3d at 685; Chavez , 62 S.W.3d at 228; Barnes , 832 S.W.2d at 426 ; cf. Shredder Co. , 225 S.W.3d at 680 (“Relator has made repeated requests for a ruling on its motion.”). In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.

— Waco 2008, orig. proceeding) (emphasis added). A trial judge has a reasonable time to perform the ministerial duty of considering and ruling on a motion properly filed and before the judge. Chavez, 62 S.W.3d at 228. But that duty generally does not arise until the movant has brought the motion to the trial judge’s attention , and mandamus will not lie unless the movant makes such a showing and the trial judge then fails or refuses to rule within a reasonable time. See id. Also,

t he mere filing of a pleading or letter with the clerk does not impute kn owledge to theIn re Rosario Page 3

trial judge

. See In re Flores, No. 04

- 03

- 00449

- CV, 2003 WL 21480964 (Tex. App.

— San Antonio June 25, 2003, orig. p roceeding). Rosario bears the burden of providing this Court with a sufficient record to establish his right to mandamus reli ef. See In re Mullins, 10

- 09

- 00143

- CV, 2009 WL
2959716 , at *1, n.1 (Tex. App.

— Waco Sept. 16, 2009, orig. proceeding ) (mem. op.) ; In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.

— Texarkana 2008, orig. proceeding). The re is

no record show ing that Rosario has brought the matter to the attention of the trial judge
and that the trial judge has then fail ed or refuse d to rule within a reasonable time

. W e deny the petition for writ of mandamus.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Petition denied Opi nion delivered and filed Febr uary 6 , 2014 Do not publish [OT06]