in Re Z. Q. ( 2021 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
January 28, 2021.
In The
Fourteenth Court of Appeals
NO. 14-21-00044-CV
IN RE Z.Q., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
315th District Court
Harris County, Texas
Trial Court Cause No. 86707
MEMORANDUM OPINION
On January 19, 2021, relator Z.Q. 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 Leah Shapiro, presiding
judge of the 315th District Court of Harris County, to rule on relator’s application
for writ of habeas corpus.
Ordinarily, to be entitled to a writ of mandamus, a relator must show that the
trial court clearly abused its discretion, and that the relator lacks an adequate remedy
by appeal. In re Turner, 591 S.W.3d 121, 124 (Tex. 2019) (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
Hearn, 137 S.W.3d 681, 685 (Tex. App.―San Antonio 2004, orig. proceeding). To
be entitled to mandamus relief for failure to rule on a motion, the record must show
that the trial court (1) had a legal duty to perform a nondiscretionary act; (2) was
asked to perform the act; and (3) failed or refused to do so. In re Dimas, 88 S.W.3d
349, 351 (Tex. App.―San Antonio 2002, 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. See Walker
v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Relator has not met
his burden. 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. In re Gomez, 602 S.W.3d 71, 74 (Tex.
App.―Houston [14th Dist.] 2020, orig. proceeding); In re Flanigan, 578 S.W.3d
634, 636 (Tex. App.―Houston [14th Dist.] 2019, orig. proceeding); In re Henry,
525 S.W.3d 381, 382 (Tex. App.―Houston [14th Dist.] 2017, orig. proceeding).
In his petition, relator states that he sent an application for writ of habeas
corpus to the trial court via certified mail return receipt requested on November 18,
2020, with a cover letter addressed to the Harris County District Clerk asking to
“have his aforementioned documents brought to the attention of the court to be
considered and ruled upon as soon as the business of the court permits.” Relator
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also requested that the clerk stamp the application and the cover letter and return the
file-stamped copies to him in the enclosed self-addressed stamped envelope. The
record contains a copy of a green card addressed to the Harris County District Clerk,
which was signed on November 23, 2020, but it does not identify what was mailed
to the district clerk. The copies of the application and the cover letter in the record
do not bear a file stamp and relator has not otherwise provide any proof that they
were filed and are pending in the trial court. Therefore, relator has not demonstrated
that his application is pending in the trial court. See Gomez, 602 S.W.3d at 74;
Flanigan, 578 S.W.3d 636; Henry, 525 S.W.3d 381, 382.
Even if relator were able to show that his application has been filed and is
pending in the trial court, he has not shown that his application has been presented
to the trial court. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.―Houston
[1st Dist.] 1992, orig. proceeding) (denying mandamus relief in part because relator
did not take any action to alert trial court that it had not yet considered his motions)
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 trial court. Hearn, 137 S.W.3d at 685.
The record includes three letters dated December 7, 2020, December 21, 2020,
and January 4, 2021, and addressed to the court coordinator asking that the trial court
be made aware of the application, an evidentiary hearing be scheduled, and that the
trial court rule on the application. Relator has not included anything in the record to
satisfy his burden that his application was in fact presented to the trial court or that
the court was aware of the application.
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Relator has not established his entitlement to mandamus relief. Accordingly,
we deny relator’s petition for writ of mandamus. Relator’s motion to suspend the
rules is dismissed as moot.
PER CURIAM
Panel consists of Justices Wise, Hassan, and Wilson. (Hassan, J., concurring without
opinion).
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