in Re: Carlos Munoz

• Court: Court of Appeals of Texas
• Decided: August 19, 2020
• Docket: 08-20-00080-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ No. 08-20-00080-CR IN RE: §

§ AN ORIGINAL PROCEEDING CARLOS MUNOZ, § IN MANDAMUS Relator. §

§

MEMORANDUM OPINION

Carlos Munoz, pro se, filed a writ of mandamus action directing the Honorable Mike

Swanson, Judge of the 143rd District Court of Ward County, Texas, to rule on Munoz’s request

for credit of time served on his sentence. The petition is denied.

Generally, mandamus relief is appropriate only to correct a clear abuse of discretion or to

compel the performance of a ministerial duty, and where the relator has no adequate remedy by

appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011)(orig. proceeding). The burden is on the

relator to show he is entitled to mandamus relief. In re Ford Motor Company, 165 S.W.3d 315,

317 (Tex. 2005)(orig. proceeding).

A trial court has a ministerial duty to consider and rule on motions properly filed and

pending before it, and mandamus may issue to compel the trial court to act. See In re Henry, 525 S.W.3d 381, 382 (Tex.App.—Houston [14th Dist.] 2017, orig. proceeding). To obtain mandamus

relief on delay grounds, a relator must establish that the trial court (1) had a legal duty to rule on

the motion; (2) was asked to rule on the motion; and (3) failed or refused to rule on the motion

within a reasonable time. Id. A trial court is not required to consider a motion that has not been

called to its attention by proper means. Id.

This case is similar to the case In re Flores, in which the Court held that a pro se relator

that does not attach evidence to his mandamus application showing he filed the motion and that

the trial court failed to rule cannot establish entitlement to mandamus. In re Flores, No. 08-20-

00017-CR, 2020 WL 913842, at *1 (Tex.App.—El Paso Feb. 26, 2020, orig. proceeding); see also

In re Harris, No. 08-19-00208-CR, 2019 WL 6242315, at *1 (Tex.App.—El Paso Nov. 22, 2019,

orig. proceeding)(cited in Flores for the same proposition). Here, Munoz did not attach evidence

showing he filed the motion in question or that he brought the motion to the trial court’s attention.

Because this mandamus application is substantially similar to the application in In re Flores, denial

here is proper.

The petition for writ of mandamus is denied.

August 19, 2020 YVONNE T. RODRIGUEZ, Justice

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)