Petition for Writ of Mandamus Denied and Memorandum Opinion filed May 27, 2004.
In The
Fourteenth Court of Appeals
____________
NO. 14-04-00434-CV
____________
IN RE ALVIN CHARLES DUNCAN, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
On May 3, 2004, relator filed a petition for writ of mandamus in this court. See Tex. Gov=t. Code Ann. ' 22.221 (Vernon Supp. 2004); see also Tex. R. App. P. 52. The petition is related to an interlocutory appeal pending under this court=s number 14-04-00319-CV, styled City of Houston v. Alvin Charles Duncan. In the appeal, the City is challenging the trial court=s denial of its plea to the jurisdiction in relator=s suit for injuries sustained in a bicycle accident on a City sidewalk pending in cause number 2003-45152 in the 133rd District Court of Harris County. In relator=s petition, he seeks to have this court compel the Honorable Lamar McCorkle, presiding judge of the 133rd District Court, to rule on relator=s pending motions to (1) appoint counsel to represent relator both at trial and on appeal, and (2) compel production of discovery and for sanctions in cause number 2003-45152.
Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion, either in resolving factual issues or in determining legal principles, and there is no other adequate remedy by appeal. In re Kuntz, 124 S.W.3d 179, 180 (Tex. 2003) Walker v. Packer, 827 S.W.2d 833, 839‑40 (Tex. 1992).
When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.CSan Antonio 1997, orig. proceeding). Among the factors to be considered in determining whether the trial court has violated a ministerial duty to rule on pending motions are the trial court=s actual knowledge of the motions and its overt refusal to act on them. See In re Bates, 65 S.W.2d 133, 135 (Tex. App.CAmarillo 2001, orig. proceeding). While relator has provided copies of his motions, the copies are not certified and bear no file stamps. In addition, the record does not establish the motions were filed and presented to the trial court for ruling. Thus, the record before this court fails to demonstrate that relator=s motions were properly filed and the trial court had actual knowledge of them. Relator has not met his burden to prove his entitlement to mandamus relief. See Walker, 827 S.W.2d at 837.
We deny relator=s petition for writ of mandamus.
PER CURIAM
Petition Denied and Memorandum Opinion filed May 27, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.