ELTON LEON POWELL v. ECTOR DISTRICT CLERK (Other)

State: Texas

Docket No: WR-71,641-02

Case Date: 04/29/2009

Plaintiff: ELTON LEON POWELL

Defendant: ECTOR DISTRICT CLERK (Other)

Preview:In re Noel V. Segura--Appeal from 144th Judicial District Court of Bexar County
MEMORANDUM OPINION

No. 04-05-00384-CV

IN RE Noel V. SEGURA

Original Mandamus Proceeding //

PER CURIAM Sitting: Catherine Stone, Justice Sarah B. Duncan, Justice Rebecca Simmons, Justice Delivered and Filed: June 22, 2005

PETITION FOR WRIT OF MANDAMUS DENIED Noel Segura has filed a petition for writ of mandamus asking this court to compel the trial court to rule on his motion for nunc pro tunc judgment. The motion seeks a nunc pro tunc judgment to resolve a jail time credit issue. We deny the requested relief. A trial judge has a duty to consider and rule on motions within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App. San Antonio 1998, orig. proceeding). To invoke this duty, however, the relator must show that the matter was brought to the attention of the trial court and the court failed or refused to rule. Barnes v. State, 832 S.W.2d 424, 426-27 (Tex. App. Houston [1st Dist.] 1992, orig. proceeding). Merely filing the matter with the district or county clerk does not impute knowledge of the pleading to the trial court. In re Heflin, No. 04-03-00302-CV, 2003 WL 21012595, *1 (Tex. App. San Antonio May 7, 2003, orig. proceeding) (mem. op.). Here, the cover letter attached to relator s motion requesting that his motion be filed and that a hearing be set is addressed to the district clerk. Neither the mandamus petition nor the attachments show that relator brought the motion to the trial court s attention. Moreover, relator s motion is dated May 11, 2005. Whether a reasonable time has lapsed is dependent upon the circumstances in each case because no bright-line rule exists. Ex parte Bates, 65 S.W.3d 133, 135 (Tex. App. Amarillo 2001, orig. proceeding). Many indicia are influential, not the least of which are the trial court s actual knowledge of the motion, its overt refusal to act on same, the state of the court s docket, and the existence of other judicial and administrative matters which must be addressed first. Id. Further, the trial court s inherent power to control its own docket must also be considered. Id.

file:///C|/Users/Peter/Desktop/opinions/PDFs1/18310.html[8/20/2013 7:46:28 PM]

In this case, approximately one month has elapsed since the filing of relator s motion for nunc pro tunc judgment, and the record contains no evidence that the trial judge has actual knowledge of the petition. Accordingly, relator has failed to show that he is entitled to mandamus relief. Relator s petition is therefore denied. // PER CURIAM

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