in Re: Ardie Dean Fisher ( 2010 )

NO. 12-10-00148-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
ARDIE DEAN FISHER, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
In this original proceeding, Relator Ardie Dean Fisher seeks mandamus relief
against the respondent trial judge alleging that the trial court has failed to rule on his
motion for a writ of audita querela. He alleges that a reasonable time has lapsed and
requests a writ of mandamus directing the trial court to rule on the motion.
A trial court has a reasonable time to perform the ministerial duty of considering
and ruling on a motion properly filed and before the court. In re Chavez, 62 S.W.3d 225,
228 (Tex. App.–Amarillo 2001, orig. proceeding). But that duty generally does not arise
until the movant has brought the motion to the trial court’s attention. See id. Mandamus
will not lie unless the movant shows the trial court was aware of the motion but has failed
or refused to rule on it within a reasonable time. See id.
The record reveals that Relator mailed his motion to the trial court clerk by
certified mail, return receipt requested, on August 10, 2009, and that the motion was
received by the clerk’s office on August 12, 2009. The record also includes two copies of
a document in the form of a pleading in which “TO THE HONORABLE JUDGE OF
SAID COURT:” appears in the center of the page below the caption. The certificate of
service recites that the document was mailed to the trial court at its mailing address on
October 19, 2009. However, the copy is not file marked, and the record contains no
proof of receipt by the trial court. Without this proof, we cannot say that Relator’s
motion has been brought to the trial court’s attention. The mere filing of a motion with
the clerk does not impute knowledge of the motion to the trial court. See Chavez, 62
S.W.3d at 228.
Because Relator has not furnished a record showing that the trial court has refused
or failed to rule on his motion within a reasonable time after receiving notice of the
motion, he has not met the prerequisites to mandamus relief. Accordingly, we deny his
petition for writ of mandamus.
Opinion delivered July 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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