in Re Hector M. Mello, Relator

Opinion

MEMORANDUM OPINION

No. 04-10-00770-CV

IN RE Hector M. MELLO

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice

Delivered and Filed: November 3, 2010

PETITION FOR WRIT OF MANDAMUS DENIED

On October 22, 2010, relator Hector M. Mello filed a petition for writ of mandamus,

seeking to compel the trial court to rule on his “writ of replevin.” However, in order to obtain a

petition for writ of mandamus compelling the trial court to consider and rule on a motion, a

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.

1 This proceeding arises out of Cause No. 2005-CI-18191, styled State of Texas v. Four Thousand One Hundred Fifty-Five Dollars ($4,155.00) United States Currency, in the 57th Judicial District Court, Bexar County, Texas, the Honorable Antonia Arteaga presiding. 04-10-00770-CR

Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding). However,

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. Nor has

relator established that the trial court has been made aware of his motion or has expressly refused

to rule on it. See In re Isbell, No. 04-06-00558-CV, 2006 WL 3206075, at *2 (Tex. App.—San

Antonio November 8, 2006, orig. proceeding) (mem. op.).

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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