in Re Cecil Max-George ( 2019 )

Petition for Writ of Mandamus Dismissed in Part and Denied in Part and
Memorandum Opinion filed January 15, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-01038-CR
IN RE CECIL MAX-GEORGE, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
185th District Court
Harris County, Texas
Trial Court Cause No. 1475788
MEMORANDUM OPINION
On December 3, 2018, relator Cecil Max-George filed a petition for writ of
mandamus, complaining of the Honorable Susan Brown, former presiding judge of
the 185th District Court of Harris County.1 See Tex. Gov’t Code Ann. § 22.221; see
also Tex. R. App. P. 52.
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The Honorable Jason Luong became the presiding judge of the 185th District Court on
January 1, 2019.
Dismissal of Petition Regarding Motion for Disqualification
In the petition, relator complains that the trial court failed to forward a motion
to disqualify the respondent judge “to an appropriate judge for a hearing.” See Tex.
R. Civ. P. 18a(f) (requiring the trial judge to either sign and file with the clerk an
order of recusal or disqualification or sign and file with the clerk an order referring
the motion to the regional presiding judge). Because respondent is no longer the
presiding judge of the 185th District Court, relator’s request that we compel the
respondent to forward the motion to disqualify to the regional presiding judge is
moot. See Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012) (“A case
becomes moot if, since the time of filing, there has ceased to exist a judicial
controversy between the parties—that is, if the issues presented are no longer ‘live,’
or if the parties lack a legally cognizable interest in the outcome.”).
Denial of Petition Regarding Request for Hearing
Relator also complains that the trial court failed to hold a hearing on his
motion to review the trial record for the preparation of an application for a writ of
habeas corpus. In his motion to review, relator requested “an instantaneous setting
for the hearing on said motion or the next day of court[.]”
To be entitled to mandamus relief, a relator must show (1) that the relator has
no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the
relator seeks to compel involves a ministerial act rather than 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
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Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig.
proceeding).
A relator must establish that the trial court (1) had a legal duty to rule on the
motion; (2) was asked to rule on the motion; and (3) failed or refused to rule on the
motion within a reasonable time. Id. It is relator’s burden to provide a sufficient
record to establish that relator is entitled to relief. See Walker v. Packer, 827 S.W.2d
833, 839 (Tex. 1992) (orig. proceeding). Relator has failed to do so. The copy of
the motion to review the trial record attached to relator’s petition, which included a
request for a hearing on the motion, is not file-stamped. Therefore, relator has not
shown that his motion to review and request for a hearing are pending in the trial
court.
Moreover, assuming relator had established that his motion was filed, he has
not demonstrated that his motion and request for a hearing were properly presented
to the trial court for a ruling. Filing a document with the district clerk does not
impute the clerk’s knowledge of the filing to the trial court. In re Chavez, 62 S.W.3d
225, 228 (Tex. App.—El Paso 2001, orig. proceeding). Thus, relator has not shown
that he requested the trial court to rule on his motion to review or his request for a
hearing. The trial court is not required to consider a motion that has not been called
to its attention by proper means. Henry, 525 S.W.3d at 382. Relator has not shown
that he entitled to mandamus relief.
Conclusion
We dismiss as moot the petition for mandamus as to relator’s request that we
compel the respondent to forward relator’s motion for disqualification to the regional
presiding judge and we deny relator’s petition for writ of mandamus as to relator’s
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request that we compel the trial court to hold a hearing on relator’s motion to review
the trial record. We also dismiss as moot relator’s motion for leave to file a petition
for writ of mandamus because such motion is not required under the Texas Rules of
Appellate Procedure. See In re Stroman, No. 14-16-00662-CV, 2016 WL 5110644,
at *1 (Tex. App.—Houston [14th Dist.] Sept. 20, 2016, orig. proceeding [mand.
denied]) (mem. op.).
PER CURIAM
Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.
Do Not Publish — Tex. R. App. P. 47.2(b).
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