NO. 07-04-0006-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A JANUARY 20, 2004

______________________________ IN RE BIL LY L. HU GHES, RE LATOR

_________________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORAND UM OPINION ON PETITION FOR WRIT OF MANDAMUS
Relator Billy L . Hughes has filed a petition requesting this court to issue a writ of mandamus directin g the Hon orable L ee Waters , Jud ge of the223rd Di strict Co urt, to consider and rule on two motions filed in the divorce suit underlying this proceeding. For the reasons stated below, we deny the requested petition

. According to relator’s petition, Judge Waters rendered a d ecree of divorce dissolving the marriage of relator and Carla Sue Hughes. R elator filed a mot ion for ne w trial and
m otion to modify and amend the divorce decree on April 21, 2003. In Augu st an d1 Relator’s petition shows he is an inm ate, whic h we ment ion only to explain why his communication with the district clerk was through correspondence.

2 These responses may not have be en entirely accurate. By virtue of Rule of Civil Procedur e 329b(c) t he motion s likely were ove rruled by

operatio n of law 75 days a ft e r rendition of the decree of divorce and were, therefore, no lon ger pending. 2 November

relator w rote 1 to the district court clerk inquiring about the status of the motions. In each instance, the clerk responded the court had not ruled on the motions and they were still pending. 2 Without taking any other action to obtain a rulin g on his motions, appellant initiated this original proceeding.
Relat or has correctly stated the applicable standards for issuance of a wr it o f mandamus and we shall not repeat them here. See generally Canadian Heli copters Ltd.
v. Witti g , 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding). Rela tor cites Barnes v. State , 832 S.W.2d 424 (Tex.App.–Houston 14 th Dist. 1992) (orig. proceeding), among other cases, for the propositions that a trial court has no discretion to refuse to consider and act, within a reasonable time, on a motion properly before it a nd thatmandamus is the proper remedy for

a failur e to do so

. Id. at 426.
There are two r

easons w hy relato r’s petit i on must be d enied. F irst, the trial cou rt has not refused to rule on relator’s motions, and secondly, rela tor’s petition does not meet the requirements for such pleadings set out in Rule of Appellate Procedure 52. In Stoner
v. Massey , 586 S.W.2d 84 3 (Tex. 1 979), our Supreme Court arti culated three ele ments
n ecess aryto show entitleme nt to a wr it of mand amus: firs t, a lega l duty toperform a nondiscr etionary act; second, a demand for performance; and third, refusal of that demand. Id. at 846.3 Thata document is filed with a court’s cl erk does not necessarily mean that the

judge is awareof it. See In re Chavez , 62 S.W.3d 225, 228 (Tex.App.–Amarillo 2001) (orig. proceedi ng). 3 T he opinion in Barnes

illustra tes the i mportanceof the se cond ele ment of S toner

. In Barnes , the relat or sough t a writ of mandamus directing the trial court to rule on h is motions. Id. at 425. While ag reeing th e trial court had a duty torule within a reasonable time, the court noted:
The relator h as not pro vided us with a record that shows that, after he filed his motion s, r elator asked the trial court for a hearing and ruling on his motions and the tr ial cour t re fused to hold a hearing and to rule. From thi s record, it appears the relator did not take anyaction to alert the trial court that it had no t yet cons idered h is two mo tions.
Id. at 426. Based on this fai lure, thecourt den ied the p etition. Id. By con trast, in Safety-Kleen Corp. v. Garcia , 945 S.W.2d 268 (Tex.App.–San Antonio 1997) (orig. proceeding), also cited by relator, the court conditionally granted a writ of mandamus where the relator had maderepeated written r equests to the cou rt coordinator

to sched ule hear ings on its motio n, reques ts thatwere expressly denied, and the trial jud ge expre ssly stated his re fusal to rule on m otions. Id. at 269. Here, as in Barnes , there is nothi ng to indicate relator has brought his motions to the attention of the trial court 3 by requesting a hearing or otherw ise, or that such request has been denied. This omi ssion req uires de nial of r elator’spetition . 832 S.W .2d at 42 6.
The second reason relator’s petition must be denied i s that it fai ls to meet the mandatory

requir ement s of Rule of Appellate Procedure 52. R ule 52.3(j)(1) requires the4

petit ion to include a certified or sworn copy of any “document showing the matte r complained of.” As applied to this proceeding, the rule required relator to provide us with, at a minimum, such co pies of t he motions forming the basis of his complaint. Without them, this cou rt could not concl ude the d ocuments were prop erly befo re the tri al court. See Barnes , 832 S.W.2d at 427. Relator’s petition for writ of mandamus is denied.

James T. Campbell Justice