in Re Jose Juan Amaro ( 2013 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
October 8, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00813-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 September 17, 2013, relator Jose Juan Amaro 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 K. Randall
Hufstetler, presiding judge of the 300th District Court of Brazoria County, to rule
on his motion to set aside a default judgment, which was filed in the trial court on
or about January 14, 2013.
Mandamus relief is available only to correct a clear abuse of discretion for
which the relator has no adequate remedy by appeal. See 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. See
Tex. R. App. P. 52.3; Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).
To establish an abuse of discretion by failing to rule on a motion, the relator
must show that the trial court had a legal duty to rule, was asked to rule, and 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. See 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).
Relator attached a limited record to his petition, consisting of only his
motion to set aside, two return receipts for certified mail, and an affidavit in
support of his petition. In his affidavit, relator attests that he filed a document on or
about May 25, 2013, asking for the trial court to docket and consider his motion to
set aside. Relator did not attach a certified or sworn copy of this document, as
required by rule. See Tex. R. App. P. 52.7(a)(1) (―Relator must file with the
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 . . . .‖). We cannot
accept an affidavit as a substitute for the official record. See Hamilton v. Empire
Gas & Fuel Co., 134 Tex. 377, 384–85, 110 S.W.2d 561, 566 (1937); Res. Health
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Servs., Inc. v. Acucare Health Strategies, Inc., No. 14-06-00846-CV, 2007 WL
4200587, at *1 (Tex. App.—Houston [14th Dist.] Nov. 29, 2007, no pet.) (mem.
op.).
The record before this court fails to demonstrate that the relator’s motion
was brought to the attention of the trial court. Cf. In re Bonds, 57 S.W.3d 456, 457
(Tex. App.—San Antonio 2001, orig. proceeding) (mandamus relief available
where record contained two letters submitted to the trial court requesting an
immediate ruling). Relator has not met his burden to prove his entitlement to
mandamus relief. See Walker, 827 S.W.2d at 837. Accordingly, we deny his
petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Christopher, McCally, and Donovan.
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