in Re Craig Sanders

Opinion

Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed July 21, 2011.

In The

Fourteenth Court of Appeals

____________

NO. 14-11-00596-CR

NO. 14-11-00597-CR

____________

IN RE CRAIG SANDERS, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

405^th District Court

Galveston County, Texas

Trial Court Nos. 11CR0380 & 11CR0381

MEMORANDUM OPINION

            On July 13, 2011, Relator, Craig Sanders, 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. 52.1.  Relator claims he was denied the right to attend an examining trial “requested and properly filed with the Galveston County District Clerk.”  Relator complains of the “Galveston County District Courts” and the “Galveston County District Attornies [sic] Office.”  Relator asserts he filed a motion for an examining trial but the record contains no such motion.

            This Court’s mandamus jurisdiction is governed by section 22.221 of the Texas Government Code.  Section 22.221 expressly limits the mandamus jurisdiction of the courts of appeals to:  (1) writs against a district court judge or county court judge in the court of appeals’ district, and (2) all writs necessary to enforce the court of appeals' jurisdiction.  Tex. Gov’t Code Ann. § 22.221 (Vernon 2004).  Because the petition for writ of mandamus is not directed toward a district court judge or county judge, and is not necessary to enforce this court’s jurisdiction, we have no jurisdiction.  See Tex. Gov’t Code Ann. § 22.221(b)(1).

            Furthermore, 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 examining trial 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. 

            The petition for writ of mandamus is denied.

                                                            PER CURIAM

Panel consists of Justices Anderson, Brown, and Christopher.

Do Not Publish — Tex.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