in Re Ramuntu L. Franklin, Relator

Opinion

MEMORANDUM OPINION No. 04-12-00659-CV

IN RE Ramuntu L. FRANKLIN

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice

Delivered and Filed: October 24, 2012

PETITION FOR WRIT OF MANDAMUS DENIED

On October 11, 2012, relator filed a petition for writ of mandamus, complaining the trial

court has indefinitely postponed his suit. 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 Antonio 1997, orig. proceeding). However, mandamus will

not issue unless the record indicates that a properly filed motion has awaited disposition for an

1 This proceeding arises out of Cause No. 10-01-00011-CVK, in the 81st Judicial District Court, Bexar County, Texas, the Honorable Donna S. Rayes presiding. 04-12-00659-CV

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).

Here, relator asserts he filed a motion for summary judgment on May 2, 2011 that has

never been ruled on, and he further complains that the trial court has indefinitely postponed his

suit. However, relator has not provided this court with a file stamped copy of the 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. Therefore, relator has failed to 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 at 886. 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).

-2-