in Re Charlene Holland

• Court: Court of Appeals of Texas
• Decided: February 12, 2003
• Docket: 04-03-00042-CV
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-03-00042-CV

IN RE Charlene HOLLAND

Original Mandamus Proceeding ⁽¹⁾

Opinion by: Paul W. Green, Justice

Dissenting opinion by: Alma L. López, Chief Justice

Sitting: Alma L. López, Chief Justice

Paul W. Green, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: February 12, 2003

PETITION FOR WRIT OF MANDAMUS DENIED

In this original proceeding, relator Charlene Holland asks that we order the presiding judge of the 227th District Court to hold a hearing and rule on her application for bond pending appeal. For the following reasons, we deny the requested relief.

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court is required to consider and rule upon a motion within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.-San Antonio 1998, orig. proceeding). "When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act." In re Ramirez, 994 S.W.2d at 683-84 (citing Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.-San Antonio 1997, orig. proceeding)). The movant must show that the matter was brought to the attention of the trial court and the trial court refused to rule. Barnes v. State, 832, S.W.2d 424, 426-27 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding) (emphasis added).

Holland's "Application for Writ of Habeas Corpus Bail Pending Appeal" was placed in the clerk's record but was never file-stamped. Similarly, Holland's "Motion to Dismiss Counsel and Reappointment (sic) Counsel Pending Appeal" ⁽²⁾ and her letter asking the trial court coordinator to set the application for bond for hearing is contained in the record but not file-stamped. Because of the state of the record, and through no apparent fault of Holland, it does not appear that the application for bond was brought to the attention of the trial court or that the trial court refused to rule on the application. We are confident that the trial court will address the application for bond within a reasonable time now that the request has been brought to its attention. Therefore, we deny the petition for writ of mandamus. Paul W. Green, Justice

Publish

1.

This proceeding arises out of Cause No. 2002-CR-1845B, styled State of Texas v. Venetia Frazier aka Charlene Holland, appealed from the 227th Judicial District Court, Bexar County, Texas, the Honorable Philip A. Kazen, Jr., presiding.

2.

Although not indicated in the title of the motion, this pleading contains a second request for bail pending appeal.