in Re Marcos Ortiz ( 2022 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed May
3, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00213-CR
NO. 14-22-00214-CR
IN RE MARCOS ORTIZ, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
56th District Court
Galveston County, Texas
Trial Court Cause No. 00CR1008 & No. 00CR1009
MEMORANDUM OPINION
On March 23, 2022, relator Marcos Ortiz 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 Lonnie
Cox, presiding judge of the 56th District Court of Galveston County, to recuse
himself.
To be entitled to mandamus relief, the relator must show that (1) he has no
adequate remedy at law to redress his alleged harm, and (2) what he seeks to
compel is a ministerial act, not a discretionary act. In re Powell, 516 S.W.3d 488,
494–95 (Tex. Crim. App. 2017) (orig. proceeding). A trial court has a ministerial
duty to consider and rule on motions properly filed and pending before it, and
mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d
381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding). For relator to
be entitled to mandamus relief, the record must show (1) the motion was filed and
brought to the attention of the respondent-judge for a ruling, and (2) the
respondent-judge has not ruled on the motion within a reasonable time after the
motion was submitted to the court for a ruling or after the party requested a ruling.
In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig.
proceeding).
As the party seeking mandamus relief, relator has the burden of providing
this court with a sufficient record to establish his right to mandamus relief. Id. at
73–74; Henry, 525 S.W.3d at 382; see also Tex. R. App. P. 52.7(a)(1) (relator must
file with the mandamus 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”). To establish that the motion was filed, the relator must provide
either a file-stamped copy of the motion or other proof that the motion in fact was
filed and is pending before the trial court. Gomez, 602 S.W.3d at 74. Merely filing
a motion with a court clerk does not show that the motion was brought to the trial
court’s attention for a ruling because the clerk’s knowledge is not imputed to the
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trial court. In re Ramos, 598 S.W.3d 472, 473 (Tex. App.—Houston [14th Dist.]
2020, orig. proceeding).
Relator has not provided this court with a mandamus record to demonstrate
that a motion to recuse is pending in the trial court.1 Similarly, there is no record
that relator has brought a pending motion to the attention of the respondent-judge
for a ruling and/or referral to the administrative judge for a ruling. Mere filing is
insufficient because the clerk’s knowledge is not imputed to the trial judge. See
Ramos, 598 S.W.3d at 473. The respondent-judge is not required to consider a
motion that has not been called to the trial court’s attention by proper means. See
Henry, 525 S.W.3d at 382. Relator has not made the requisite showing.
Accordingly, we deny relator’s petition for writ of mandamus against the
trial court.
PER CURIAM
Panel consists of Justices Jewell, Zimmerer, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
1
Relator included in his appendix to the petition for writ of mandamus two orders signed by the
trial court on May 18, 2017 and January 28, 2022, respectively, wherein the trial court declined to recuse
himself and referred the case to the administrative judge for a ruling.
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