In Re: Willie Billington--Appeal from 7th District Court of Smith County (per curiam)
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NO. 12-12-00081-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN RE: § WILLIE BILLINGTON, § RELATOR § ORIGINAL PROCEEDING MEMORANDUM OPINION PER CURIAM In this original proceeding, Relator Willie Billington seeks a writ of mandamus directing the trial court to rule on Relator s Motion For Compelling Orders. BACKGROUND In November 2011, Relator filed several motions in the trial court, which were denied. Relator then sought copies of these motions from the district clerk, but was notified that he was not entitled to free copies. On January 25, 2012, Relator filed a Motion For Compelling Orders in which he alleged that, on his behalf, a friend delivered a money order to the office of the Smith County District Clerk in the amount required to purchase copies of the motions. He alleged further that despite this payment, the district clerk did not send the copies. Therefore, he requested an order from the trial court directing the district clerk to send the copies. According to Relator, the trial court has not ruled on the motion. DISCUSSION 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. Relator has not made any such showing here. Consequently, we cannot conclude that he is entitled to mandamus relief. See Chavez, 62 S.W.3d at 228. Accordingly, Relator s petition for writ of mandamus is denied. Opinion delivered May 31, 2012. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 2 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT MAY 31, 2012 NO. 12-12-00081-CR WILLIE BILLINGTON, Relator v. HON. KERRY L. RUSSELL, Respondent ORIGINAL PROCEEDING ON THIS DAY came to be heard the petition for writ of mandamus filed by WILLIE BILLINGTON, who is the relator in Cause No. 7-91-488, pending on the docket of the 7th Judicial District Court of Smith County, Texas. Said petition for writ of mandamus having been filed herein on March 5, 2012, and the same having been duly considered, because it is the opinion of this Court that the writ of mandamus should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby DENIED. By per curiam opinion. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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