in Re Harvey Bramlett, Jr., and Jason Blakeney

• Court: Court of Appeals of Texas
• Decided: February 12, 2013
• Docket: 07-13-00024-CV
• Status: Published

Opinion

NO. 07-13-0024-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 12, 2013 __________________________

In re HARVEY BRAMLETT, JR. AND JASON BLAKENEY,

Relators _____________________________

On Original Proceeding for Writ of Mandamus _____________________________

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