in Re Cynthia Johnson ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00734-CV
In re Cynthia Johnson
ORIGINAL PROCEEDING FROM BELL COUNTY
MEMORANDUM OPINION
On November 10, 2010, relator Cynthia Johnson filed a petition for writ of mandamus
and a motion for temporary relief. See Tex. R. App. P. 52.8, 52.10. Shortly thereafter, we issued
an order granting the motion for temporary relief and staying the execution of the judgment against
Johnson pending our resolution of the petition for writ of mandamus. In the order, we also allowed
the real parties in interest to file a response by December 1, 2010. See id. R. 52.4. In her petition,
Johnson asserts that the county court abused its discretion by failing to set, in response to her filed
motion, the amount of a supersedeas bond.
To obtain mandamus relief for an alleged refusal to rule on a motion, a party must
show that “(1) the trial court had a legal duty to act, (2) there was a demand for performance, and
(3) there was a refusal to act.” In re Smith, 263 S.W.3d 93, 96 (Tex. App.—Houston [1st Dist.]
2006, orig. proceeding). Simply showing “that a motion was filed with the clerk does not constitute
proof that the motion was brought to the attention of the trial court,” id., or that the motion was
“presented to the trial court with a request for a ruling,” In re Davidson, 153 S.W.3d 490, 491 (Tex.
App.—Amarillo 2004, orig. proceeding). Although the record shows that Johnson filed a motion
asking the court to set the amount, nothing in the record indicates that she set the matter for a hearing
or requested a ruling or that the trial court refused to act.
Accordingly, having reviewed the petition, response, and record, we dissolve our stay
and deny the petition for writ of mandamus.
David Puryear, Justice
Before Chief Justice Jones, Justices Puryear and Pemberton
Filed: December 21, 2010
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