in Re David Matthew Layton, Relator ( 2008 )


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  •                                      NO. 07-08-0105-CV
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL B
    JUNE 5, 2008
    ______________________________
    IN RE DAVID MATTHEW LAYTON
    _________________________________
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
    ON PETITION FOR WRIT OF MANDAMUS
    Relator, David Matthew Layton, has filed a Petition for Writ of Mandamus seeking
    an order from this court directing the Honorable Hal Miner to “hold a hearing on said Motion
    on Interlocutory appeals (sic) in cause number 94,288-A . . . .” The motion, which was filed
    with the district clerk on June 11, 2007, requests the trial court to issue an order authorizing
    the written deposition of Warren Clark, Layton’s criminal trial counsel, to investigate a
    potential claim of legal malpractice relating to that representation. Layton contends that
    he is entitled to relief because Judge Miner “is abusing his discretion by sitting on” Layton’s
    motion. We deny the petition.
    A trial court has a ministerial duty to consider and rule on motions properly filed and
    pending before the court and mandamus may issue to compel the judge to act. Safety-
    Kleen Corp. v. Garcia, 
    945 S.W.2d 268
    , 269 (Tex.App.–San Antonio 1997, orig.
    proceeding) (citing O’Donniley v. Golden, 
    860 S.W.2d 267
    , 269-70 (Tex.App.–Tyler 1993,
    orig. proceeding). However, the trial court is afforded a reasonable time in which to
    perform this ministerial duty. Barnes v. State, 
    832 S.W.2d 424
    , 426 (Tex.App.–Houston
    [1st Dist.] 1992, orig. proceeding). Whether the trial court has failed to act within a
    reasonable time is dependent upon the circumstances of the case. 
    Id. To establish
    entitlement to mandamus relief, the relator must establish that the trial court had a legal
    duty to perform a non-discretionary act, relator made demand for performance, and the
    court refused to perform. Stoner v. Massey, 
    586 S.W.2d 843
    , 846 (Tex. 1979). However,
    a court is not required to consider a motion not called to its attention. Metzger v. Sebek,
    
    892 S.W.2d 20
    , 49 (Tex.App.–Houston [1st Dist.] 1994, writ denied).
    Reviewing the documents Layton attached to his petition, nothing establishes that
    the motion was brought to the attention of the trial court. At best, the documents attached
    to Layton’s petition show that his motion was filed with the district clerk on June 11, 2007.
    Filing a motion with the district clerk does not establish that the motion was brought to the
    attention of the trial court because the clerk's knowledge of the motion is not imputed to
    the trial court.   In re Chavez, 
    62 S.W.3d 225
    , 228 (Tex.App.–Amarillo 2001, orig.
    proceeding). Because Layton’s petition fails to demonstrate that his motion has been
    actually brought to the trial court’s attention or presented for a ruling, we must deny
    Layton’s petition for writ of mandamus. See In re Posey, No. 07-03-0518-CV, 2004
    Tex.App. LEXIS 695, at *2-*3 (Tex.App.–Amarillo 2004, orig. proceeding).
    2
    Layton’s petition for writ of mandamus is denied.
    Mackey K. Hancock
    Justice
    3