In re Ernesto C. Castaneda d/b/a Castaneda's Nationwide Federal Bonding & Bail Bonding Companies, Lt'd., Surety--Appeal from 365th Judicial District Court of Maverick County

d/b/a Casteneda's Nationwide Federal Bonding

& Bail Bonding Companies, Ltd.

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: March 24, 2004

MOTION FOR LEAVE DENIED AS MOOT; PETITION FOR WRIT OF MANDAMUS DENIED

On March 4, 2004, relator Ernesto C. Casteneda d/b/a Casteneda's Nationwide Federal Bonding & Bail Bonding Companies, Ltd. filed a petition for writ of mandamus, alleging the trial court abused its discretion by refusing to accept him as surety on bail bonds while his bill of review is pending to overturn judgments on prior bond forfeitures. Because the bond forfeiture judgments are final and execution may issue on them, Casteneda is disqualified as a matter of law from signing as surety until the judgments are satisfied or vacated. See Tex. Code Crim. P. Ann. art. 17.11 2 (Vernon Supp. 2003) (surety in default on bail bond is disqualified to sign as surety). Because Casteneda is disqualified as a matter of law, the trial court did not abuse its discretion by so notifying the sheriffs in the county of Casteneda's default.

Casteneda also complains the trial court has refused to rule on the bill of review. There is no indication in the mandamus petition or record that, after filing the motion with the district clerk, Casteneda asked the trial court to rule on the petition or otherwise did anything to bring the proceeding to the trial court's attention. Accordingly, he has failed to show an abuse of discretion by the trial judge. Barnes v. State, 832 S.W.2d 424, 426-27 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding) (relator must show matter brought to the attention of the trial court and trial court refused to rule); In re Heflin, 04-03-00302-CV, 2003 WL 21012595, at *1 (Tex. App.-San Antonio, May 7, 2003, orig. proceeding) (filing with the district or county clerk does not impute knowledge of the pleading to the trial court).

No leave is required to file a petition for writ of mandamus, therefore we deny the motion for leave to file as moot. Having considered the merits of the petition, this court has determined that Casteneda is not entitled to the relief sought. Accordingly, Casteneda's petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a). Relator shall pay all costs incurred in this proceeding.

Paul W. Green, Justice

1. This proceeding arises out of Cause No. 02-12-18853-MCV, styled Jaime Tomas Garcia, et al., and Ernesto C. Casteneda d/b/a Casteneda's Nationwide Federal Bonding & Bail Bonding Companies, Lt'd(sic) v. The State of Texas, pending in the 365th Judicial District Court, Maverick County, the Honorable Amado Abascal presiding.