ORIGINAL PROCEEDING WRIT OF MANDAMUS 179th District Court
Harris County, Texas Trial Court Cause No. 1535047
consists of Justices Christopher, Spain, and Poissant (Spain,
September 17, 2019, relator Andrew Pete filed a petition for
writ of mandamus in this court. See Tex. Gov't
Code Ann. § 22.221; see also Tex. R. App. P.
52. In the petition, relator asks this court to compel the
Honorable Randy Roll, presiding judge of the 179th District
Court of Harris County, to rule on relator's motions,
which he claims are pending in the trial court.
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 Henry, 525 S.W.3d 381,
382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding).
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 a relator's
burden to provide a sufficient record to establish that
relator is entitled to relief. Id. Relator has
failed to do so. Relator has not attached any file-stamped
copies of the motions in question. In the absence of
file-stamped copies of the motions, relator has not
established that his motions are actually pending in the
relator had established that his motions are properly
pending, he has not demonstrated that his motions were
properly presented to the trial court for rulings. See In
re Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th
Dist.] 2017, orig. proceeding). Filing a document with the
district clerk does not impute the clerk's knowledge of
the filing to the trial court. In re Craig, 426
S.W.3d 106, 107 (Tex. App.-Houston [1st Dist.] 2012, orig.
proceeding) ("The mere filing of a motion with the trial
court clerk does not equate to a request that the trial court
rule on the motion."). The trial court is not required
to consider any motion that has not been called to its
attention by proper means. See Henry, 525 S.W.3d at
has not established that he is entitled to mandamus relief.
Accordingly, we deny relator's petition for writ of
Poissant, J., joining both the Opinion and Concurring
Charles A. Spain Justice.
the court can deny the petition based on Texas Rule of
Appellate Procedure 52.3(k)(1)(A)-the lack of a proper
appendix containing a certified or sworn copy of the
documents showing the matter complained of, i.e.,
the motions on which the respondent district judge has
allegedly not ruled-I concur in the denial of relator's
petition for writ of mandamus.
therefore, unnecessary for the court to cite to In re
Henry and In re Craig in order to deny the
petition. Henry, 525 S.W.3d 381, 382 (Tex.
App.-Houston [14th Dist.] 2017, orig. proceeding) (corrected
op., per curiam) ("Relator also has not shown that his
motion has been presented to the trial court nor has he shown
how long the motion has been pending since presentment. The
trial court is not required to consider a motion that has not
been called to its attention by proper means.");
Craig, 426 S.W.3d 106, 107 (Tex. App.-Houston [1st
Dist.] 2012, orig. proceeding) (per curiam) ("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.").
Henry is a mandamus proceeding against a trial judge
who allegedly had not ruled in the underlying criminal case
on a criminal defendant's motion to compel a ruling on a
motion to reduce sentence. Craig is a mandamus
proceeding to compel the trial judge to rule in the
underlying criminal case on a motion for judgment nunc pro
opinions are part of a line of cases from the courts of
appeals that purports to set out the procedure for motion
practice in criminal courts. And it seems the foundation for
those lines of cases is either civil cases or the presentment
practice for motions for new trials in criminal cases. The
problem with these cases is that (1) the legislature, not the
judiciary, generally makes the rules of procedure in criminal
cases and (2) the underlying motion in this original
proceeding is not a motion for new trial. See Tex.
Code Crim. Proc. Ann. art. 1.03 (setting out objects of the
Code of Criminal Procedure); see generally 40 George
E. Dix & John M. Schmolesky, Texas Practice: Criminal
Practice and Procedure §§ 1:4-1:10 (3d ed.
2011). The Code of Criminal Procedure does provide that
"the rules of the common law shall be applied and
govern" if the Code "fails to provide a rule of
procedure in any particular state of case which may
arise," but I have found no cases which use article 1.27
to fashion a general requirement that motions be presented or
that incarcerated defendants be required to request that the
court rule on filed motions.Tex. Code. Crim. Proc. Ann. art.
1.27. I certainly have found no cogent explanation of how an
incarcerated person, who presumably cannot get a bench