in Re: Arthur Roy Morrison

• Court: Court of Appeals of Texas
• Decided: February 23, 2015
• Docket: 05-15-00172-CV
• Status: Published

Opinion

DENIED and Opinion Filed February 20, 2015

Court of Appeals S In The

Fifth District of Texas at Dallas No. 05-15-00172-CV

IN RE ARTHUR ROY MORRISON, Relator

Original Proceeding from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F07-55832-S

MEMORANDUM OPINION Before Justices Lang-Miers, Evans, and Whitehill Opinion by Justice Evans Relator filed this petition for writ of mandamus complaining that the trial court has failed

to rule on his motion for judgment nunc pro tunc. Relator’s petition does not comply with the

rules of appellate procedure. We deny the petition.

“Those seeking the extraordinary remedy of mandamus must follow the applicable

procedural rules. Chief among these is the critical obligation to provide the reviewing court with

a complete and adequate record.” In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th

Dist.] 2011, orig. proceeding). Because the record in a mandamus proceeding is assembled by

the parties, 1 see TEX. R. APP. P. 52.3(j), 52.3(k), 52.7, this Court strictly enforces the

requirements of rule 52 of the rules of appellate procedure to ensure the integrity of the

mandamus record. See, e.g., In re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig.

1 Relator has not included a record in support of his petition for writ of mandamus as required by the rules of appellate procedure. See TEX. R. APP. P. .52.3(j), 52.3(k), 52.7. Rather, he has filed with this Court, “Relator’s Requested Designation of Items from Clerk’s Record.” proceeding) (finding affidavit insufficient to authenticate record because it did not state affiant

had “personal knowledge the copy of the order in the appendix is a correct copy of the

original.”). Relator’s petition for writ of mandamus does not include a certification that the

person filing the petition “has reviewed the petition and concluded that every factual statement in

the petition is supported by competent evidence included in the appendix or record.” TEX. R.

APP. P. 52.3(j). It does not include an appendix or record in support of the petition. TEX. R. APP.

P. 52.3(k)(1)(A); 52.7(a). Each of these deficiencies alone is sufficient to warrant denial of the

petition.

Moreover, relator’s petition does not demonstrate that he has taken any measures to

obtain a ruling from the trial court on his motion. A court is not required to consider a motion

that has not been properly called to its attention. In re Davidson, 153 S.W.3d 490, 491 (Tex.

App.—Amarillo 2004, orig. proceeding); Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.—

Houston [1st Dist.] 1994, writ denied). The duty to procure a hearing rests on the moving party,

not upon the trial judge. Bolton's Estate v. Coats, 608 S.W.2d 722, 729 (Tex. Civ. App.—Tyler

1980, writ ref'd n.r.e.).

Mandamus is appropriate in a criminal case if the relator shows that he has no other

adequate legal remedy and the act sought to be compelled is purely ministerial. State of Tex. ex

rel. Hill v. Court of Appeals for the Fifth Dist., 67 S.W.3d 177, 180–81 (Tex. Crim. App. 2001)

(orig. proceeding); In re Watkins, 315 S.W.3d 907, 908 (Tex. App.—Dallas 2010, orig.

proceeding). On the record before the Court, we cannot conclude relator is entitled to relief. We

deny the petition.

/ David Evans/ DAVID EVANS 150172F.P05 JUSTICE

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