in Re Robert Montgomery

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed September 15, 2011.

In The

Fourteenth Court of Appeals

____________

NO. 14-11-00749-CR

____________

IN RE ROBERT MONTGOMERY, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

174th District Court

Harris County, Texas

Trial Court Cause No. 1241141

M E M O R A N D U M   O P I N I O N

            On August 31, 2011, relator filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  Relator complains that respondent, the Honorable Ruben Geurrero, presiding judge of the 174th District Court of Harris County, has failed to grant his motion for judgment nunc pro tunc.

To be entitled to mandamus relief, a relator must show that he has no adequate remedy at law to redress his alleged harm, and what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig.proceeding). Consideration of a motion that is properly filed and before the court is a ministerial act.  State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App.1987) (orig.proceeding) (op. on reh'g).  A relator must establish the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so.  In re Keeter, 134 S.W.3d 250, 252 (Tex. App. -- Waco 2003, orig. proceeding).  A relator must show that the trial court received, was aware of, and asked to rule on the motion.  In re Villarreal, 96 S.W.3d 708, 710 (Tex. App. -- Amarillo 2003, orig. proceeding).  Filing something with the district clerk's office does not mean the trial court is aware of it; nor is the clerk's knowledge imputed to the trial court.  Id. at n. 2.

Relator has not provided file-stamped copies of his motion for judgment nunc pro tunc demonstrating it is actually pending in the trial court.  Absent a showing the trial court is aware of and been asked to rule on his motion, relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relator’s petition for writ of mandamus.

                                                                        PER CURIAM

Panel consists of Justices Brown, Boyce, and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).