in Re Evangelos Pagonis, Relator

Opinion

MEMORANDUM OPINION No. 04-11-00647-CR

IN RE Evangelos PAGONIS

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Steven C. Hilbig, Justice

Delivered and Filed: September 28, 2011

PETITION FOR WRIT OF MANDAMUS DENIED AND PETITION FOR WRIT OF MANDAMUS DISMISSED FOR LACK OF JURISDICTION

On September 6, 2011, relator filed two petitions for writ of mandamus. In the first

petition, relator complains the trial court has failed to provide him copies of documents he has

requested. However, in order to be entitled to mandamus relief, relator must establish that 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

1 This proceeding arises out of Cause No. 2008-CR-6730-W1, in the 144th Judicial District Court, Bexar County, Texas, the Honorable Angus K. McGinty presiding. 04-11-00647-CR

(Tex. App.—San 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).

Here, relator has not provided this court with a file stamped copy of his motion or any

other documents to show that a properly filed motion is pending before the trial court and has

been brought to the trial court’s attention. Relator has failed to meet his burden that a properly

filed motion has awaited disposition for an unreasonable amount of time. See id. Based on the

foregoing, we conclude relator has not shown himself entitled to mandamus relief. Accordingly,

relator’s first petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).

In relator’s second petition, he asks this court to compel an attorney to abide by a court

order. However, this court does not have jurisdiction to grant the requested relief. By statute,

this court has the authority to issue a writ of mandamus against “a judge of a district or county

court in the court of appeals district” and other writs as necessary to enforce our appellate

jurisdiction. See TEX. GOV’T CODE ANN. § 22.221(a)-(b) (West 2004). We conclude the writ is

not necessary to enforce our jurisdiction. Accordingly, relator’s petition for writ of mandamus is

DISMISSED FOR LACK OF JURISDICTION.

DO NOT PUBLISH

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