Petitions for Writ of Mandamus Denied, and Memorandum Opinion filed December 11, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-08-01026-CR
NO. 14-08-01027-CR
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IN RE IVO NABELEK, Relator
ORIGINAL PROCEEDINGS
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
On November 6, relator, Ivo Nabelek, filed two petitions for a writ of mandamus. See Tex. Gov=t Code Ann. ' 22.221(b) (Vernon 2004); Tex. R. App. P. 52. In those petitions, relator asks us to direct the respondent[1] to rule on several pending motions, which he contends were filed on December 17, 2007. Because relator has not demonstrated an abuse of the trial court=s discretion, however, we deny the mandamus petitions.
In an appropriate case, mandamus may issue to compel a trial court to perform its ministerial duty of considering and ruling upon a properly filed and pending motion. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.CAmarillo 2001, orig. proceeding); Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.CSan Antonio 1997, orig. proceeding). To be entitled to mandamus relief, the relator must demonstrate that the trial court was asked to rule, had a duty to rule, and failed or refused to do so. See Chavez, 62 S.W.3d at 228. In other words, a relator must prove that the trial court was presented with the motion, but refused to rule within a reasonable time. See id.
Relator has not demonstrated that his motions[2] have been presented to the trial court for ruling. Although relator insists his motions were filed with the 180th district court, the paperwork attached to his mandamus petition demonstrates otherwise. The motions bear no file stamp, and relator has not provided a certified-mail green card reflecting the trial court=s receipt of these motions. In addition, the alleged filing letter was addressed to the Harris County district clerk, not the trial court. See Tex. R. Civ. P. 74 (permitting pleadings to be filed with clerk). If relator=s motions were filed with the district clerk, we are unaware of any rule that imputes the clerk=s knowledge to the trial court. See Chavez, 62 S.W.3d at 228. In that event, it must be demonstrated that the trial court was aware of the motion; however, relator has not produced correspondence from the clerk indicating that relator=s motions were presented to the trial court. See, e.g., In re Peters, No. 14-08-00744-CV, 2008 WL 4390186, at *1 (Tex. App.CHouston [14th Dist.] Sept. 30, 2008, orig. proceeding) (mem. op.).
Instead, relator avers in an unsworn affidavit that his cousin telephoned a clerk during the ASummer of 2008,@ and that the clerk informed relator=s cousin that the respondent had not acted on the motions. Were we to consider this double hearsay statement, relator still has not demonstrated that the trial court delayed unreasonably by failing to rule before November 6, the date relator=s mandamus petition was filed.
There is no bright-line demarcation of what constitutes a reasonable time period. See Chavez, 62 S.W.3d at 228. Instead, the determination depends upon a Amyriad of criteria,@ including the trial court=s actual knowledge of the motions; its overt refusal to act on the motions; the state of the court=s docket; and the presence of other, more pressing, judicial and administrative matters. See id. at 228B29. The record is silent as to several of these considerations, and relator has not shown the trial court=s alleged delay, from the ASummer of 2008@ to November 6, 2008, to be per se unreasonable. See, e.g., In re Villarreal, 96 S.W.3d 708, 711 (Tex. App.CAmarillo 2003, orig. proceeding) (finding five-month delay not per se unreasonable).
Accordingly, we deny the petitions for writ of mandamus in cause numbers 14-08-01026-CR and 14-08-01027-CR, and all other requests for relief contained in those petitions.
PER CURIAM
Petitions Denied, and Memorandum Opinion filed, December 11, 2008.
Panel consists of Justices Yates, Seymore, and Boyce.
Do Not Publish. See Tex. R. App. P. 47.2.
[1] The respondent is the Honorable Debbie Mantooth-Stricklin, presiding judge of the 180th District Court of Harris County, Texas.
[2] The motions in question consist of relator=s (1) Motion to Temporarily Unseal Evidence, (2) Motion for In Camera Review, (3) Motion for Withdrawal and Substitution of Exhibits, and (4) Motion to Return Original Exhibits to the State.