In Re Wayne Ernest Barker--Appeal from 295th District Court of Harris County

Petition for Writ of Mandamus Denied, and Memorandum Opinion filed December 23, 2008

Petition for Writ of Mandamus Denied, and Memorandum Opinion filed December 23, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-08-01009-CR

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IN RE WAYNE ERNEST BARKER, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

On October 31, 2008, relator Wayne Ernest Barker, acting pro se, petitioned for a writ of mandamus, asking us to order the respondent[1] to rule on relator=s Motion for Default Judgment. Relator represents that he filed his motion on July 8, 2008, but that the trial court has failed to rule within a reasonable time. We deny the petition for writ of mandamus.

When a motion is properly filed and presented to a trial court for ruling, the trial court has a ministerial duty to consider and rule upon that motion, and mandamus may issue to compel the trial court to act. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.CSan Antonio 1997, orig. proceeding). However, a trial court cannot be said to have abused its discretion unless the relator establishes that the trial court was asked to rule, had a duty to rule, and failed or refused to do so. See O=Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.CAmarillo 2001, orig. proceeding). Therefore, a relator must demonstrate that the trial court was presented with the motion, but refused to rule within a reasonable time. See Chavez, 62 S.W.3d at 228.

Relator has not demonstrated that his motion for default judgment has been presented to the trial court for ruling. The mandamus record contains no notice of hearing or notice of submission. The paperwork that accompanies relator=s mandamus petition bears no file stamp, and relator has not provided a certified-mail return card reflecting the court=s receipt of relator=s motion. Nor has relator produced correspondence from the Harris County District Clerk indicating that the default-judgment motion was presented to the trial court. See, e.g., In re Peters, No. 14-08-00744-CV, 2008 WL 4390186, at *1 (Tex. App.CHouston [14th Dist.] Sept. 30, 2008, orig. proceeding) (mem. op.). Because the record does not show that the motion was before the trial court, we cannot decide that the trial court abused its discretion in allegedly failing to rule on the motion. See Chavez, 62 S.W.3d at 228.

Accordingly, we deny the petition for writ of mandamus.

PER CURIAM

Petition Denied, and Memorandum Opinion filed, December 23, 2008.

Panel consists of Justices Anderson and Frost, and Senior Justice Hudson.*

Do Not Publish.

[1] The respondent is the Honorable Tracy Christopher, presiding judge of the 295th District Court of Harris County.

* Senior Justice J. Harvey Hudson sitting by assignment.