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in Re Jose Juan Amaro ( 2013 )


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  • Petition for Writ of Mandamus Denied and Memorandum Opinion filed March 19,
2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00213-CV
IN RE JOSE JUAN AMARO, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
300th District Court
Brazoria County, Texas
Trial Court Cause No. 67083
MEMORANDUM OPINION
On March 12, 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 K. Randall
Hufstetler, presiding judge of the 300th District Court of Brazoria County, to rule
on his motion to set aside a default judgment filed on or about December 31, 2012.
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 a copy of his motion, the copy is not certified and
bears no file stamp. Relator has attached a printout from a website that reports
“Events and Orders of the Court” which states a motion for telephonic hearing was
filed December 26, 2012, but the record does not establish the motion was
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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