in Re Dante D'Agostino

Opinion

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION No. 04-13-00611-CV

IN RE Dante D’AGOSTINO

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Sandee Bryan Marion, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: September 18, 2013

PETITION FOR WRIT OF MANDAMUS DENIED

On September 9, 2013, relator Dante D’Agostino filed a petition for writ of mandamus,

complaining the trial court has failed to rule on various motions filed in a probate proceeding.

However, in order to be entitled to mandamus relief, relator must establish the trial court: (1) had

a legal duty to perform a non-discretionary act; (2) was asked to perform the act; and (3) failed or

refused to do so. In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig.

proceeding). When a properly filed motion is pending before a trial court, the act of giving

consideration to and ruling upon that motion is ministerial, and mandamus may issue to compel

the trial judge to act. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San

1 This proceeding arises out of Cause No. 2011-PC-1730, styled In the Estate of Margaret T. Whitmire, Deceased, pending in the Probate Court No. 2, Bexar County, Texas, the Honorable Polly Jackson-Spencer presiding. 04-13-00611-CV

Antonio 1997, orig. proceeding). However, mandamus will not issue unless the record indicates

that a properly filed motion has awaited disposition for an unreasonable amount of time. See id.

Relator has the burden of providing this court with a record sufficient to establish his right

to mandamus relief. See TEX. R. APP. P. 52.7(a) (“Relator must file with the 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”); see also TEX. R. APP. P. 52.3(k)(1)(A); Walker v. Packer, 827

S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).

Relator asserts he filed various motions in the probate proceeding which the court has failed

to rule on. However, he has not provided this court with a file stamped copy of any of the motions

or any other documents to show that a properly filed motion is pending before the probate court

and has been brought to the court’s attention. Based on the foregoing, we conclude relator has not

shown himself entitled to mandamus relief. Accordingly, relator’s petition for writ of mandamus

is denied. See TEX. R. APP. P. 52.8(a).

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