Chief Justice Gray, Justice Davis, and Justice Neill
original proceeding, Relator Jackie Russell Keeter seeks to
compel the respondent, the Judge of the 220th Judicial
District Court of Hamilton County, to rule on his
"Motion Nunc Pro Tunc."
court with mandamus authority 'will grant mandamus relief
if relator can demonstrate that the act sought to be
compelled is purely 'ministerial' and that relator
has no other adequate legal remedy.'" In re
Piper, 105 S.W.3d 107, 109 (Tex. App.-Waco 2003, orig.
proceeding) (quoting State ex rel. Rosenthal v. Poe,
98 S.W.3d 194, 197-99 (Tex. Crim. App. 2003) (orig.
proceeding)). Consideration of a motion properly filed and
before the court is ministerial. State ex rel. Hill v.
Ct. of App. for Fifth Dist., 34 S.W.3d 924, 927 (Tex.
Crim. App. 2001) (orig. proceeding).
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 Hearn, 137
S.W.3d 681, 685 (Tex. App.-San Antonio 2004, orig.
proceeding); In re Keeter, 134 S.W.3d 250, 252-53
(Tex. App.-Waco 2003, orig. proceeding); In re
Chavez, 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001,
orig. proceeding); Barnes v. State, 832 S.W.2d 424,
426 (Tex. App.- Houston [1st Dist.] 1992, orig. proceeding);
see also In re Shredder Co., 225 S.W.3d 676, 679
(Tex. App.-El Paso 2006, 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
Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at
252; Chavez, 62 S.W.3d at 228; Barnes, 832
S.W.2d at 426; see also Shredder Co., 225 S.W.3d at
679. 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; Barnes, 832 S.W.2d at 426; cf.
Shredder Co., 225 S.W.3d at 680 ("Relator has made
repeated requests for a ruling on its motion.").
In re Sarkissian, 243 S.W.3d 860, 861 (Tex.
App.-Waco 2008, orig. proceeding) (mem. op.) (emphasis
judge has a reasonable time to perform the ministerial duty
of considering and ruling on a motion properly filed and
before the judge. Chavez, 62 S.W.3d at 228. But that
duty generally does not arise until the movant has brought
the motion to the trial judge's attention, and
mandamus will not lie unless the movant makes such a
showing and the trial judge then fails or refuses to
rule within a reasonable time. See id. Also, the
mere filing of a matter with the clerk does not
impute knowledge to the trial judge. See In re
Flores, No. 04-03-00449-CV, 2003 WL 21480964, at *1
(Tex. App.-San Antonio Jun. 25, 2003, orig. proceeding) (mem.
bears the burden of providing a sufficient record to
establish his right to mandamus relief. See In re
Blakeney, 254 S.W.3d 659, 661 (Tex. App.-Texarkana 2008,
orig. proceeding); see also In re Mullins,
10-09-00143-CV, 2009 WL 2959716, at *1 n.1 (Tex. App.-Waco
Sept. 16, 2009, orig. proceeding) (mem. op.). There is no
record showing that Keeter has brought his "Motion Nunc
Pro Tunc" to the attention of the trial judge and that
the trial judge has then failed or refused to rule within a
reasonable time. Accordingly, we deny Keeter's petition
for writ of mandamus.
GRAY Chief Justice
problem of trial courts failing to rule on pending motions is
an ongoing problem. For the reasons expressed in my
concurring opinion in In Re Rangel, 570 S.W.3d 968,
970-971 (Tex. App.-Waco 2019, orig. proceeding), I continue
to believe that we are wasting resources by not having a
better procedure than the existing case authority on when to
deny a petition for writ of mandamus when the petitioner is
an inmate trying to simply get a ruling on a motion.
See Appendix A. The prophylactic measure that seems
to work is a request for a response in a form that advises
the respondent and the real-party-in-interest that a ruling
on the motion may be submitted in lieu of a response to the
petition. See Appendix B. While the Court's
precedent supports the Court's ruling in this case, that
precedent has proven to be inefficient and ineffective in
practice for actually getting the pending motion ruled upon.
Thus, while I concur in the judgment of the Court denying the
petition, for the reasons stated, I respectfully suggest that
there is a better way to actually get the issue resolved
which would be to request a response similar to the order
utilized in Appendix B.