COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

IN RE GERA R DO OGAZ, Relator. § § § § § No. 08

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- 00 3 4 4

- C R
AN ORIGINAL PROCEEDING
IN MANDAMUS

MEMORANDUM OPINION Relator Gera r do Ogaz file d a petition for writ of mandamus

. See T EX
. G OV ’ T C ODE A NN
. § 22.221 ; T EX
. R. A PP
. P. 52

. 1 Relator asks this Court to compel the Honorable Maria Salas

Mendoza, the presiding judge of the 120th District Court, to rule on four motions he purportedly filed in trial cause number 20110D02663

. In that cause, he claims he was convicted of evading arrest with a motor vehicle . Here, he asserts the motions relate to a “non

- pe nding ” petition for s tate h abeas c orpus. T o be entitled to mandamus relief, a relator must establish two elements . First, he must show that the act sought to be compelled is a ministerial act not involving a discretionary or judicial decision

. In re Meza , 611 S.W.3 d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding). Second, he must show there is no adequate remedy by appeal. I d.2 Generally, “ [a] trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, a nd mandamus may issue to compel the trial court to act.” See In re
Harris , No. 08

- 19

- 00208

- CR, 2019 WL 6242315, at *1 (Tex. App.

— El Paso Nov. 22, 2019) (orig. proceeding) (not designated for publication)

. However, t o be entitled to mandamus relief pertaining to motions not yet ruled upon, a r elator must establish that “(1) the trial court had a legal duty to rule on the motion s ; (2) was asked to rule on the motion s ; and (3) failed or refused to rule on the motion s within a reasonable time.” In re Li verman , 658 S.W

. 3d 881, 882 (Tex. App.

— El Paso 2022) (orig. proceeding) (quoting In re Harris , 2019 WL 624315, at *1 ). Moreover, t he trial
court has no duty to rule on or consider a motion not properly presented for a ruling. Id. Relator bears the burden to produce a sufficient record establishing he is entitled to relief.
In re Pen a , 619 S.W.3d 837, 839 (Tex. App.

— Houston [14th Dist.] 2021) (orig. proceeding) ; T EX
. R. A PP
. P . 52.7 (a)(1) (relator must file with the mandamus petiti on “a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding”)

. As relevant here, “ the record must show both that the motion was filed and [it was] brought to the attention of the judge for a ruling.” In re Flanigan , 578 S.W.3d 634, 636 (Tex. App.

— Houston [14th Dist.] 2019, no pet. )

. Relator’s appendix to his petition includes the follow ing four motions : (1) a m otion for a free reporter’s and clerk’s record; (2) a motion to compel the district attorney for inspection of an open/public record’s file; (3) a motion to compel Maria Hernandez to send defendant his client attorney file; and (4) a motion for public records, warrants, affidavits, police reports, witness report and documents used to enhance. He alleges the motions were filed on March 26, 2023. N one of the motions , however, include a f ile stamp reflecting they were properly filed with the district
court.3 Notably, the a ppendix also includes a letter from the 120 th District Court, dated April 4, 2023, in which the court acknowledg es receipt of a motion seeking to compel the district attorney to pr oduce public records. Th is letter, however, further notifies Relator that the district court no longer retains jurisdiction over State of Texas vs. Gerardo Ogaz , trial cause number 20110D02663 , which he had referenced. Moreover, the letter inform s Relator that i f he was seeking public records, he may be able “ to request them directly from the DA’s office. ” On review of th e mandamus record , we conclude it does not establish that Relator’s motions were filed and brought to the attention of the trial court in a currently pending case. Further, even if Relator’s motions had been file

- stamped, the record is also absent of any evidence establishing that any of the motions were properly presented for rulings. In re Pete , 589 S.W.3d 320, 321

– 22 (Tex. App.

— Houston [14th Dist.] 2019) (orig. proceeding) (per curiam) (noting that filing a document with the trial court is insufficient to show presentment or a request to rule on the motion)

. Because Relator failed to establish entitlement to mandamus relief , we deny t he petition for writ of mandamus

.

GINA M. PALAFOX , J ustice
D ecember 7 , 2023 Before Palafox , J., Soto, J. , and Marion, C.J. (Ret.) Marion, C.J. (Ret.) (Sitting by Assignment) (Do Not Publish)