in Re Tracey W. Murphy

MEMORANDUM OPINION

No. 04-09-00064-CV

IN RE Tracey W. MURPHY

Original Mandamus Proceeding ⁽¹⁾

PER CURIAM

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Marialyn Barnard, Justice

Delivered and Filed: February 25, 2009

PETITION FOR WRIT OF MANDAMUS DENIED

On February 2, 2009, relator Tracey W. Murphy filed a petition for writ of mandamus, complaining of the trial court's failure to rule on his "Motion to Compel Sheriff [or] Constable to Serve Process and Return All Defendant's Citations." To obtain a writ of mandamus compelling the trial court to consider and rule on a motion, a relator must establish that the trial court: (1) had a legal duty to perform a non-discretionary act; (2) was asked to perform the act; and (3) failed or refused to do so. In re Molina, 94 S.W.3d 885, 886 (Tex. App.--San Antonio 2003, orig. proceeding). When a properly filed motion is pending before a trial court, the act of giving consideration to and ruling upon that motion is ministerial, and mandamus may issue to compel the trial judge to act. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding). However, mandamus will not issue unless the record shows that a properly filed motion has awaited disposition for an unreasonable amount of time. See id. It is relator's burden to provide this court with a record sufficient to establish his right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); Tex. R. App. P. 52.3(k), 52.7(a).

The record before us fails to establish relator is entitled to the relief requested. Although relator alleges he filed his motion on November 19, 2008, relator has not provided this court with a file stamped copy of the motion, a copy of the trial court's docket, or any other proof that he filed the motion and that it is pending before the trial court. In addition, if a motion is properly filed, a trial court has a reasonable time within which to perform its ministerial duty. See Safety-Kleen, 945 S.W.2d at 269. Even if relator's motion was properly filed, the record does not show that relator's motion has awaited disposition for an unreasonable amount of time.

Accordingly, because relator has not met his burden of providing a record establishing that a motion was properly filed and has awaited disposition for an unreasonable amount of time, he has not provided this court with grounds to usurp the trial court's inherent authority to control its own docket. See In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.--San Antonio 2004, orig. proceeding). Accordingly, relator's petition for writ of mandamus is denied. Tex. R. App. P. 52.8(a).

PER CURIAM

1. This proceeding arises out of Cause No. 08-08-00135-CVK, styled Tracey W. Murphy v. Hugh Green, et al., pending in the 81st Judicial District Court, Karnes County, Texas, the Honorable Donna S. Rayes presiding.