In Re: James Allen Lee--Appeal from 321st District Court of Smith County

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NO. 12-11-00036-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN RE: § JAMES ALLEN LEE, § RELATOR § ORIGINAL PROCEEDING MEMORANDUM OPINION PER CURIAM In this original proceeding, Relator James Allen Lee seeks a writ of mandamus requiring the trial court to rule on his motion for Enforcement of Possessory Rights and for Contempt. We deny the petition. To obtain a writ of mandamus compelling the trial court to consider and rule on a motion, a relator must establish that the trial court (1) had a legal duty to perform a nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do so. In re Molina, 94 S.W.3d 885, 886 (Tex. App. San Antonio 2003, orig. proceeding). Generally, a trial court has a nondiscretionary duty to consider and rule on a motion within a reasonable time. In re Thomas, No. 12 05 00261 CV, 2005 WL 2155244, at *4 (Tex. App. Tyler Sept. 7, 2005, orig. proceeding) (mem. op.). But a trial court cannot be expected to consider a motion not called to its attention. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App. Amarillo 2001, orig. proceeding). Merely filing a motion with the district clerk does not impute the clerk s knowledge of the filing to the trial court. Id. at 228. Therefore, it is incumbent upon the relator to establish that the motion has been called to the trial court s attention. See id. The record in this proceeding includes a copy of one letter from Lee to the district clerk relating to the status of his motion. However, we cannot conclude from the record that Lee has requested a hearing on the motion or that the trial court has otherwise been made aware of the motion. Consequently, Lee has not shown that he is entitled to mandamus relief. See In re Chavez, 62 S.W.3d at 228. Accordingly, Lee s petition for writ of mandamus is denied. Opinion delivered March 16, 2011. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (PUBLISH) 2

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