Court of Appeals of Texas, Seventh District, Amarillo
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Reidie James Jackson, appearing pro se, filed a petition
asking the Court to issue a writ of mandamus against
respondent, the Honorable Ana Estevez, judge of the 251st
District Court of Potter County. He seeks an order compelling
Judge Estevez to rule on a motion for partial summary
judgment brought by real parties in interest and defendants
in the trial court, David Ellis and Andrew Gratz. We will
deny the petition.
states in his petition that he filed suit against Ellis and
Gratz, they filed a motion for partial summary judgment in
October 2015, and he filed a response the next month. Jackson
adds that in December 2016 he filed a motion requesting a
ruling on the defendants' motion for summary judgment and
in May 2017 a letter requesting a ruling on pending motions
and a trial setting.
mandamus record contains a copy of the defendants' motion
for summary judgment, Jackson's December 2016 motion, and
his May 2017 letter. The motion bears the district
clerk's electronic file stamp. Jackson's motion does
not contain a file stamp but in an unsworn declaration he
states he filed it "with the Clerk, to have it presented
to the 251st District[.]" Likewise, the letter does not
bear a file stamp but in an unsworn declaration, Jackson
states it was "mailed to Judge Estaves (sic) back in May
2017. The Letter was mailed first-class to the Clerk of
Potter County." The letter identifies Jackson's
lawsuit by name and cause number. The stated recipient and
delivery address is: "Hon. Ana Estavez (sic), 251st
Courtroom, Amarillo, Tx." The letter requests "a
ruling on the motions that have been there and a trial
will issue only to correct a clear abuse of discretion or the
violation of a duty imposed by law when there is no adequate
remedy by appeal. Walker v. Packer, 827 S.W.2d 833,
839-40 (Tex. 1992) (orig. proceeding); In re Prudential
Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004)
(orig. proceeding). A trial court clearly abuses its
discretion when it fails to rule within a reasonable time on
a properly-presented pretrial motion. Safety-Kleen Corp.
v. Garcia, 945 S.W.2d 268, 269 (Tex. App.-San Antonio
1997, orig. proceeding).
a writ of mandamus will issue in circumstances like those
presented here, the relator must establish that the trial
court 1) had a legal duty to perform a non-discretionary act,
2) performance was demanded, and 3) refused to act.
O'Connor v. First Court of Appeals, 837 S.W.2d
94, 97 (Tex. 1992) (orig. proceeding); In re Posey,
No. 07-03-00518-CV, 2004 Tex.App. Lexis 695, at *2 (Tex.
App.-Amarillo Jan. 22, 2004, orig. proceeding) (mem. op.)
(citing Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.
court cannot be expected to consider a motion not called to
its attention. In re Chavez, 62 S.W.3d 225, 228
(Tex. App.-Amarillo 2001, orig. proceeding). Filing a motion
with the district clerk does not prove it was brought to the
attention of the trial court because the clerk's
knowledge of the motion is not imputed to the trial court.
Id. Therefore, a "[relator] must prove that the
trial court received notice of the pleading . . . . Merely
alleging that something was filed with or mailed to the
district clerk does not satisfy that requirement."
In re Metoyer, No. 07-07-00506-CR, 2008 Tex.App.
Lexis 243, at *4 n.2, (Tex. App.-Amarillo Jan. 14, 2008,
orig. proceeding) (mem. op., not designated for publication)
mandamus record does not show Judge Estevez conducted a
hearing on the defendants' motion for summary judgment or
ordered a date for its submission without hearing. Indeed,
nothing before us shows the motion was called to the
attention of Judge Estevez. The record does indicate Jackson
submitted his December 2016 motion and May 2017 letter to a
clerk. Nothing shows either was received by the Potter County
District Clerk. But more to the point, the record does not
indicate that Judge Estevez received Jackson's motion or
letter. It goes without saying then that the record does not
conclusively establish Judge Estevez refused to rule on the
motion for partial summary judgment, Jackson's motion, or
Jackson's letter. See In re Posey, 2004 Tex.App.
Lexis 695, at *2-3 (discussing authorities and finding in
part that the relator's petition did not demonstrate his
motion was called to the attention of the respondent trial
court judge). Because Jackson has not shown Judge Estevez
refused to rule on a properly-presented pending pretrial
motion, he has not met his mandamus burden and his petition
is therefore denied.
 Because the record presented does not
prove the matters addressed in Jackson's petition have
been called to Judge Estevez's attention, we express no
opinion on the merits of his implicit contention the judge
has committed an abuse of discretion by a failure to rule on