in Re Marcos Ortiz

Petition for Writ of Mandamus Denied and Memorandum Opinion filed May 3, 2022. In The Fourteenth Court of Appeals NO. 14-22-00213-CR NO. 14-22-00214-CR IN RE MARCOS ORTIZ, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS 56th District Court Galveston County, Texas Trial Court Cause No. 00CR1008 & No. 00CR1009 MEMORANDUM OPINION On March 23, 2022, relator Marcos Ortiz 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 Lonnie Cox, presiding judge of the 56th District Court of Galveston County, to recuse himself. To be entitled to mandamus relief, the relator must show that (1) he has no adequate remedy at law to redress his alleged harm, and (2) what he seeks to compel is a ministerial act, not 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). For relator to be entitled to mandamus relief, the record must show (1) the motion was filed and brought to the attention of the respondent-judge for a ruling, and (2) the respondent-judge has not ruled on the motion within a reasonable time after the motion was submitted to the court for a ruling or after the party requested a ruling. In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). As the party seeking mandamus relief, relator has the burden of providing this court with a sufficient record to establish his right to mandamus relief. Id. at 73–74; Henry, 525 S.W.3d at 382; see also Tex. R. App. P. 52.7(a)(1) (relator must file with the mandamus 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 proceeding”). To establish that the motion was filed, the relator must provide either a file-stamped copy of the motion or other proof that the motion in fact was filed and is pending before the trial court. Gomez, 602 S.W.3d at 74. 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 2 trial court. In re Ramos, 598 S.W.3d 472, 473 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). Relator has not provided this court with a mandamus record to demonstrate that a motion to recuse is pending in the trial court.1 Similarly, there is no record that relator has brought a pending motion to the attention of the respondent-judge for a ruling and/or referral to the administrative judge for a ruling. Mere filing is insufficient because the clerk’s knowledge is not imputed to the trial judge. See Ramos, 598 S.W.3d at 473. The respondent-judge is not required to consider a motion that has not been called to the trial court’s attention by proper means. See Henry, 525 S.W.3d at 382. Relator has not made the requisite showing. Accordingly, we deny relator’s petition for writ of mandamus against the trial court. PER CURIAM Panel consists of Justices Jewell, Zimmerer, and Hassan. Do Not Publish — Tex. R. App. P. 47.2(b). 1 Relator included in his appendix to the petition for writ of mandamus two orders signed by the trial court on May 18, 2017 and January 28, 2022, respectively, wherein the trial court declined to recuse himself and referred the case to the administrative judge for a ruling. 3