in Re Zahir Querishi ( 2013 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April
30, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00300-CV
IN RE ZAHIR QUERISHI, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 86707
MEMORANDUM OPINION
On April 5, 2013, relator filed a petition for writ of mandamus in this Court.
See Tex. Gov’t Code Ann. §22.22; see also Tex. R. App. P. 52. In the petition,
relator asks this Court to compel the Honorable Michael Schneider, presiding
judge of the 315th District Court of Harris County, to rule upon his motion to
compel issuance of citation, filed February 4, 2013.
The motion to compel issuance of citation was filed in connection with
relator’s application for writ of habeas corpus filed October 4, 2012. Relator has
provided a copy of the motion that bears a file stamp from the district clerk.
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 relator must demonstrate that the
trial court was presented with the motion, but refused to rule within a reasonable
time. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, 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 Chavez, 62 S.W.3d at 228.
The record does not establish the motions were presented to the trial court
for ruling. Thus, the record before this court fails to demonstrate the trial court had
actual knowledge of the motion and has refused to rule. Moreover, in determining
whether the trial court ruled within a reasonable time period, the court considers
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the trial court's actual knowledge of the motion, its overt refusal to act on the
motion, the state of the court's docket, and the presence of other, more pressing,
judicial and administrative matters. See id. at 228–29. The record is silent as to
these considerations, and relator has not shown the trial court's delay, from
February 4, 2013, to April 5, 2013, to be per se unreasonable. See, e.g., In re
Villarreal, 96 S.W.3d 708, 711 (Tex. App.—Amarillo 2003, orig.
proceeding) (finding five-month delay not per se unreasonable).
Relator has not met his burden to prove his entitlement to mandamus
relief. See Walker, 827 S.W.2d at 837. Accordingly, we deny relator’s petition for
writ of mandamus.
PER CURIAM
Panel consists of Justices Boyce, Jamison and Busby.
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