ORIGINAL PROCEEDING WRIT OF MANDAMUS 434th District Court
Fort Bend County, Texas Trial Court Cause No. 17-DCV-244689
consists of Justices Christopher, Spain, and Poissant.
January 22, 2019, relator Troy Wigley filed a petition for
writ of mandamus in this court. See Tex. Gov't
Code Ann. § 22.221 (Supp.); see also Tex. R.
App. P. 52. In the petition, relator asks this court to
compel the Honorable James H. Shoemake, presiding judge of
the 434th District Court of Fort Bend County, to rule on four
motions: "Motion for an Evidentiary Hearing and Notice
of Suit"; "Motion to Compel Defendants To
Answer"; "Motion for Appointment of Counsel";
and "Motion for Leave to Amend and Supplemental
party seeking relief, relator has the burden of providing
this court with a sufficient record to establish his right to
mandamus relief. See Walker v. Packer, 827 S.W.2d
833, 837 (Tex. 1992); Tex.R.App.P. 52.7(a)(1) (relator must
file with petition "a certified or sworn copy of every
document that is material to the relator's claim for
relief and that was filed in any underlying
is required to rule on a motion within a reasonable time
after the motion has been submitted to the court for a
ruling. In re Foster, 503 S.W.3d 606, 607 (Tex.
App.-Houston [14th Dist.] 2016, orig. proceeding). "The
record must show both that the motion was filed and brought
to the attention of the judge for a ruling." In re
Wigley, No. 14-19-00059-CV, 2019 WL 386339, at *1 (Tex.
App.- Houston [14th Dist.] Jan. 31, 2019, orig. proceeding)
(per curiam) (mem. op.). In civil cases such as the
underlying case, the Rules of Judicial Administration provide
that district and statutory county court judges should, so
far as reasonably possible, ensure that civil jury cases are
brought to trial or final disposition within 18 months from
appearance date and civil nonjury cases are brought to trial
or final disposition within 12 months from appearance date.
Tex. R. Jud. Admin.6.1(a).
establish that the motion was filed, relator must provide
either a file stamped copy of the motion or other proof that
the motion was in fact filed. In re Bishop, No.
14-06-00636-CV, 2006 WL 2434200, at *1 (Tex. App.-Houston
[14th Dist.] Aug. 24, 2006, orig. proceeding) (per curiam)
to relator's petition is a "Motion for Appointment
of Counsel," with a stamp indicating it was filed on
September 20, 2017, a "Motion for an Evidentiary Hearing
and Notice of Suit," with a stamp indicating it was
filed on September 20, 2017, and a "Motion to Compel
Defendants To Answer," with a stamp indicating it was
filed on September 20, 2017, and "Motion for Appointment
of Counsel," with a stamp indicating it was filed on
November 30, 2017. The file stamps are sufficient to show
these motions have been filed.
attached to relator's petition is a "Motion for
Leave to Amend and Supplemental Complaint" which has no
file stamp, but relator submits an unsworn declaration that
he mailed this motion to the district clerk on July 24, 2018.
But such declaration does not prove the motion was received
and filed by the clerk.
assuming that all four of above-refenced motions have been
filed, relator must also provide a record showing he brought
the motions to the attention of the judge for a ruling.
"Merely filing a motion with a court clerk does not show
that the motion was brought to the trial court's
attention for a ruling because the clerk's knowledge is
not imputed to the trial court." In re
Amaro, No. 14-14-00340-CV, 2014 WL 2157088, at *1-2
(Tex. App.-Houston [14th Dist.] May 20, 2014, orig.
proceeding) (per curiam) (mem. op.). "Filing a request
for a ruling is insufficient to call the matter to the
judge's attention because a judge may be unaware of the
request. Instead, the party demanding a ruling must set its
request either for submission or a hearing." In re
Dong Sheng Huang, 491 S.W.3d 383, 385-86 (Tex.
App.-Houston [1st Dist.] 2016, orig. proceeding). See
also Barnes v. State, 832 S.W.2d 424, 426 (Tex.
App.-Houston [1st Dist.] 1992, orig. proceeding) (denying
petition because relator did not provide record demonstrating
he asked for hearing after he filed motions); In re
Harris, No. 14-07-231-CV, 2007 WL 1412105, at *1 (Tex.
App.- Houston [14th Dist.] May 15, 2007, orig. proceeding)
(mem. op.) (holding relator not entitled to mandamus relief
when record did not show relator alerted judge of motion by
setting it for submission or hearing). The duty to procure a
hearing rests on the moving party, not upon the trial judge.
Bolton's Estate v. Coats, 608 S.W.2d 722, 729
(Tex. Civ. App.-Tyler 1980, writ ref'd n.r.e.). A
judge's failure to set a motion for hearing, when not
asked to make such a setting, is not an abuse of discretion.
Calaway v. Gardner, 525 S.W.2d 262, 264 (Tex. Civ.
App.-Houston [14th Dist.] 1975, no writ).
to relator's petition are four letters. Three of the
letters (dated June 3, 2019, March 1, 2019, and February 13,
2018 and addressed to the district clerk) request the
district clerk to bring the matter to the attention of Judge
Shoemake and request Judge Shoemake to render an order on the
motions at issue. The fourth letter (dated June 10, 2019 and
addressed to Judge Shoemake) requests Judge Shoemake to
render an order on the motions.
letters are insufficient to show that the motions have been
brought to the attention of the trial judge for a ruling for
at least three reasons. First, none of the letters request
that a hearing be set on the motions. "Relator's
failure to request a hearing is fatal to his request for a
writ of mandamus." In re Rodriguez, No.
05-16-01352-CV, 2016 WL 7163875, at *1 (Tex. App.-Dallas Nov.
29, 2016, orig. proceeding) (mem. op.) (citing In re Dong
Sheng Huang). Second, the letters are not sworn copies.
See In re Buholtz, No. 05-14-01286-CV, 2014 WL
5426127, at *1 (Tex. App.-Dallas Oct. 27, 2014, orig.
proceeding) (mem. op.) (denying petition because documents in
appendix were not authenticated or sworn to). Third, relator
has not provided any proof that these letters were properly
mailed and received by the clerk or the judge. The letters
have no file stamps indicating that they have been filed.
a court has no power, and hence no duty, to rule upon a
matter over which it has no jurisdiction. Doctors Hosp.
Facilities v. Fifth Court of Appeals, 750 S.W.2d 177,
179 (Tex. 1988). "Personal jurisdiction, a vital
component of a valid judgment, is dependent 'upon
citation issued and served in a manner provided for by
law.'" In re E.R., 385 S.W.3d 552, 563
(Tex. 2012) (orig. proceeding). "If the record does not
show strict compliance with the rules governing citation, the
service is invalid and in personam jurisdiction cannot be
established." Mansell v. Insurance Co. of the
W., 203 S.W.3d 499, 501 (Tex. App.-Houston [14th Dist.]
2006, no pet.). Relator has not provided a record showing
that he has strictly complied with the rules governing
Texas Rule of Appellate Procedure 52.3(j) provides that
"[t]he person filing the petition must certify that he
or she has reviewed the petition and concluded that every
factual statement in the petition is supported by competent
evidence included in the appendix or record."
See Tex. R. App. P. 52.3(j). Relator's petition
does not contain this certification. ...