in Re David Carl Wormington ( 2013 )

Opinion of March 26, 2013, Withdrawn and Petition for Writ of Mandamus Denied
and Corrected Memorandum Opinion filed April 12, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00231-CV
IN RE DAVID CARL WORMINGTON, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
247th District Court
Harris County, Texas
Trial Court Cause No. 2004-20973
CORRECTED MEMORANDUM OPINION
This court withdraws its opinion of May 26, 2013, and issues this corrected
opinion in its place because of the opinion incorrectly identified the District Court.
On March 19, 2013, relator filed a petition for writ of mandamus in this
Court. See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App.
P. 52. In the petition, relator asks this Court to compel the Honorable Bonnie Crane
Hellums, presiding judge of the 247th District Court of Brazoria County to rule on
his motion for contempt of court and request for hearing on motion for contempt.
Mandamus relief is available only to correct a clear abuse of discretion for
which the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 135–36 (Tex.2004). It is the relator's burden to provide this
court with a sufficient record to establish the right to mandamus relief. Walker v.
Packer, 827 S.W.2d 833, 839–40 (Tex.1992); Tex.R.App. P. 52.3.
To establish an abuse of discretion by failing to rule on a motion, the relator
must show that the trial court: (1) had a legal duty to rule; (2) was asked to rule;
and (3) failed or refused to do so. See In re Dimas, 88 S.W.3d 349, 351 (Tex.App.-
San Antonio 2002, orig. proceeding). A party who complains about a trial court's
refusal to rule on a pending motion must show that the matter was brought to the
attention of the trial court and that the trial court failed or refused to rule. In re
Hearn, 137 S.W.3d 681, 685 (Tex.App.-San Antonio 2004, orig. proceeding).
Merely filing a matter with the district clerk is not sufficient to impute knowledge
of the pending pleading to the trial court. See In re Chavez, 62 S.W.3d 225, 228
(Tex.App.-Amarillo 2001, orig. proceeding).
While relator has provided copies of his motions, the copies are not certified
and bear no file stamp. The record does not establish the motions were presented
to the trial court for ruling. Thus, the record before this court fails to demonstrate a
motion was properly filed and the trial court had actual knowledge of it. Relator
has not met his burden to prove his entitlement to mandamus
relief. See Walker, 827 S.W.2d at 837.
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Accordingly, we deny relator's petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Christopher, Jamison, and McCally.
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