in Re: Benjamin J. Gutierrez

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§ No. 08-14-00061-CV
IN RE: BENJAMIN J. GUTIERREZ,
§ ORIGINAL PROCEEDING
RELATOR. ON PETITION FOR WRIT OF
§ MANDAMUS
§
MEMORANDUM OPINION
Relator, Benjamin Gutierrez, has filed a pro se petition for writ of mandamus against the
Honorable Yahara Gutierrez, Judge of the 65th District Court of El Paso County, Texas. He asks
that we order Respondent to set aside temporary orders entered in connection with a petition to
modify custody filed by the Real Party in Interest, Araceli Jimenez. We have also construed his
mandamus petition as requesting that we order Respondent to rule on his motion to set aside the
temporary orders. The petition for writ of mandamus is denied.
To be entitled to mandamus relief, a relator must meet two requirements. First, the
relator must show that the trial court clearly abused its discretion. In re Prudential Insurance
Company of America, 148 S.W.3d 124, 135-36 (Tex. 2004). Second, the relator must
demonstrate that there is no adequate remedy by appeal. Id. at 136.
Mandamus may issue to compel a trial court to rule on a motion which has been pending
before the court for a reasonable period of time. See In re Shredder Co., 225 S.W.3d 676, 679
(Tex.App.--El Paso 2006, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex.App.--San
Antonio 2004, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex.App.--Amarillo 2001,
orig. proceeding). To obtain mandamus relief for such refusal, a relator must establish: (1) the
motion was properly filed and has been pending for a reasonable time; (2) the relator requested a
ruling on the motion; and (3) the trial court refused to rule. See Shredder Co., 225 S.W.3d at
679; Hearn, 137 S.W.3d at 685; Chavez, 62 S.W.3d at 228. The mere filing of a motion with a
trial court clerk does not equate to a request that the trial court rule on the motion. See Hearn,
137 S.W.3d at 685; Chavez, 62 S.W.3d at 228. The record before us does not establish that
Relator has requested a ruling on his motion to set aside the temporary orders or that Respondent
has refused to rule on the motion. Consequently, he is not entitled to mandamus relief on this
ground.
Relator presents other arguments to support his request that we order Respondent to aside
the temporary orders. Based on the record before us, we conclude that Relator has not
established he is entitled to mandamus relief. Accordingly, we deny the petition for writ of
mandamus. See TEX.R.APP.P. 52.8(a).
February 19, 2014
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
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