in Re Z. Q. ( 2023 )

Motions Dismissed, Petition for Writ of Mandamus Denied, and
Memorandum Opinion filed February 9, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00843-CV
IN RE Z. Q., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
315th District Court
Harris County, Texas
Trial Court Cause No. 0000-86707
MEMORANDUM OPINION
On November 14, 2022, relator Z. Q. filed a petition for writ of mandamus
in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In
the petition, relator asks this Court to compel the Honorable Leah Shapiro,
presiding judge of the 315th District Court of Harris County, to “make a ruling on
the merits of relator’s habeas application.”
To be entitled to mandamus relief, the relator must show that (1) he has no
adequate remedy at law to redress his alleged harm, and (2) what he seeks to
compel is a ministerial act, not a discretionary act. In re Powell, 516 S.W.3d 488,
494–95 (Tex. Crim. App. 2017) (orig. proceeding). A trial court has a ministerial
duty to consider and rule on motions properly filed and pending before it, and
mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d
381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding). For relator to
be entitled to mandamus relief, the record must show (1) the motion was filed and
brought to the attention of the respondent-judge for a ruling, and (2) the
respondent-judge has not ruled on the motion within a reasonable time after the
motion was submitted to the court for a ruling or after the party requested a ruling.
In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig.
proceeding).
As the party seeking mandamus relief, relator has the burden of providing
this court with a sufficient record to establish his right to mandamus relief. Id. at
73–74; Henry, 525 S.W.3d at 382; see also Tex. R. App. P. 52.7(a)(1) (relator must
file with the mandamus petition “a certified or sworn copy of every document that
is material to the relator’s claim for relief and that was filed in any underlying
proceeding”). To establish that the motion was filed, the relator must provide
either a file-stamped copy of the motion or other proof that the motion in fact was
filed and is pending before the trial court. Gomez, 602 S.W.3d at 74. Merely filing
a motion with a court clerk does not show that the motion was brought to the trial
court’s attention for a ruling because the clerk’s knowledge is not imputed to the
2
trial court. In re Ramos, 598 S.W.3d 472, 473 (Tex. App.—Houston [14th Dist.]
2020, orig. proceeding).
In his petition for writ of mandamus, relator asserts that “Respondent has a
duty to consider and rule upon the merits of relator’s habeas application.” Relator
attached as an exhibit to his petition an April 6, 2021 order signed by the
respondent that denied relator’s habeas application “without issuing the writ or
hearing on the merits.” Additionally, relator attached as an exhibit to his petition a
November 3, 2022, memorandum opinion from this Court dismissing relator’s
appeal of respondent’s denial of his habeas corpus application for lack of
jurisdiction.
Relator, however, has not provided this Court with a mandamus record to
demonstrate that a motion requesting a ruling on the merits of relator’s habeas
application is pending in the trial court. Similarly, there is no record that relator
has brought a pending motion to the attention of the respondent-judge for a ruling.
Mere filing is insufficient because the clerk’s knowledge is not imputed to the trial
judge. See Ramos, 598 S.W.3d at 473. The respondent-judge is not required to
consider a motion that has not been called to the trial court’s attention by proper
means. See Henry, 525 S.W.3d at 382. Even if relator showed that his motion is
properly pending in the trial court and the trial court was made aware of it, relator
has not shown that it has been pending for an unreasonable period of time. In sum,
relator has not made the requisite showing. See Gomez, 602 S.W.3d at 73.
3
Relator has not established his entitlement to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus. We dismiss as
moot relator’s motion to take judicial notice and relator’s motion to suspend the
rules.
PER CURIAM
Panel consists of Justices Wise, Poissant, and Wilson.
4