IN RE: Alejandro Emiliano Solis

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Court of Appeals of Texas, Corpus Christi-Edinburg.

IN RE: Alejandro Emiliano Solis

NUMBER 13–16–00059–CR

Decided: January 22, 2016

Before Justices Garza, Perkes, and Longoria

MEMORANDUM OPINION

On January 21, 2016, Alejandro Emiliano Solis, proceeding pro se, filed a petition for writ of mandamus seeking relief against the Honorable Juergen “Skipper” Koetter, Judge of the 267th District Court of DeWitt County, Texas.  Through this original proceeding, relator seeks to compel the trial court to rule on his “Motion in Arrest of Judgment,” filed on November 12, 2015.2

To be entitled to mandamus relief, relator must establish both that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a ministerial act not involving a discretionary or judicial decision.  State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex.Crim.App.2007).  If relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied.  See id.  It is the relator's burden to properly request and show entitlement to mandamus relief.  Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992) (orig.proceeding);  In re Davidson, 153 S.W.3d 490, 491 (Tex.App.—Amarillo 2004, orig. proceeding);  see Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”).

Consideration of a request or 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);  see White v. Reiter, 640 S.W.2d 586, 594 (Tex.Crim.App.1982).  Stated otherwise, a trial court has a ministerial duty to consider and rule, within a reasonable time, on motions properly filed and pending before the court.  See In re Layton, 257 S.W.3d 794, 795 (Tex.App.—Amarillo 2008, orig. proceeding).  Thus, in proper cases, mandamus may issue to compel the trial court to act.  See In re Blakeney, 254 S.W.3d 659, 661 (Tex.App.—Texarkana 2008, orig. proceeding).

Filing a motion with the district clerk does not establish that the motion was brought to the attention of the trial court because the clerk's knowledge of the motion is not imputed to the trial court.  In re Chavez, 62 S.W.3d 225, 228 (Tex.App.—Amarillo 2001, orig. proceeding).  In this regard, the mere filing of a motion does not equate to a request that the trial court rule on the motion.  In re Sarkissian, 243 S.W.3d 860, 861 (Tex.App.— Waco 2008, orig. proceeding);  In re Hearn, 137 S.W.3d 681, 685 (Tex.App.—San Antonio 2004, orig. proceeding);  In re Chavez, 62 S.W.3d at 228;  Barnes, 832 S.W.2d at 426;  cf.  In re Shredder Co., 225 S.W.3d at 680 (“Relator has made repeated requests for a ruling on its motion.”).

Here, there is nothing in the limited record before this Court to establish that relator has ever requested a ruling on his motion or otherwise called the motion to the respondent's attention.  See Barnes, 832 S.W.2d at 426 (denying mandamus petition where relator did not ask for a hearing on his motions or take any action to alert trial court that it had not yet considered his motions).  Moreover, there is nothing in the record establishing that the two-month interval since the motion was allegedly filed did not constitute a “reasonable time” within which the trial court should have ruled.  See In re Layton, 257 S.W.3d at 795.  Accordingly, relator has not furnished an appendix sufficient to support his claim for relief.  See In re Dimas, 88 S.W.3d 349, 351 (Tex.App.—San Antonio 2002, orig. proceeding);  In re Chavez, 62 S.W.3d at 228.  Therefore, the Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that relator has failed to establish his entitlement to mandamus relief.

We deny relator's petition for writ of mandamus.

FOOTNOTES

FOOTNOTE.  

2.   Relator raised similar issues in a previous original proceeding filed with this Court.  See In re Solis, No. 13–15–00610–CR, 2015 WL 9487508, at *1 (Tex.App.—Corpus Christi Dec. 29, 2015, no. pet. h.) (mem. op. per curiam, not designated for publication) (dismissing in part and denying in part the petition for writ of mandamus).

Memorandum Opinion Per Curiam 1 FN1. See Tex.R.App. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”);  Tex.R.App. P. 47.4 (distinguishing opinions and memorandum opinions).