NO. 07-13-0024-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 12, 2013
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In re HARVEY BRAMLETT, JR. AND JASON BLAKENEY,
Relators
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On Original Proceeding for Writ of Mandamus
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Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Pending before the court is the petition for writ of mandamus of
Harvey Bramlett, Jr. and Jason Blakeney (relators). They are requesting
that we direct the Hon. Douglas Woodburn, 108th District Court, Potter
County, to act upon their amended motion to recuse. We deny the
application.
One seeking a writ of mandamus must include with his petition the
pertinent "document showing the matter complained of." Tex. R. App. P.
52.3(k)(1)(A). To the extent that the relators ask us to direct the trial
court to act upon their amended motion to recuse, the "document showing the
matter complained of" would be the amended motion. However, it is neither
attached to the petition for mandamus relief nor included in an appendix
filed with the petition. Thus, relators failed to comply with the
requirements of the Texas Rules of Appellate Procedure. See In re Smith,
279 S.W.3d 714 (Tex. App.-Amarillo 2007, orig. proceeding) (denying the
petition because the "document showing the matter complained of" was not
provided).
Next, while it may be that the duty to rule upon a motion is
ministerial, In re Bates, 65 S.W.3d 133, 134-35 (Tex. App.-Amarillo 2001,
orig. proceeding), the court nonetheless has a reasonable time within which
to do so. Id. at 135. Furthermore, it is incumbent upon the relator to
illustrate that the trial court was aware of the particular motion and,
thus, its duty to act. In re Smith, 279 S.W.3d at 715-16. The latter
obligation is not satisfied by simply establishing that the motion was
filed with the district clerk, for notice to the clerk is not imputed to
the trial court; that is, the clerk is not the agent, employee, or
representative of the trial court. In re Chavez, 62 S.W.3d 225, 228 (Tex.
App.-Amarillo 2001, orig. proceeding). Relators have also failed to
satisfy this obligation here. Consequently, we cannot say that they
established their entitlement to the relief requested.
Accordingly, we deny the petition for a writ of mandamus.
Per Curiam