in Re David Rosario

• Court: Court of Appeals of Texas
• Decided: February 6, 2014
• Docket: 10-14-00027-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-14-00027-CR

IN RE DAVID ROSARIO

Original Proceeding

MEMORANDUM OPINION

In this original proceeding, Relator David Rosario seeks mandamus relief in the

form of compelling the Respondent trial court judge to rule on Rosario’s motion for

speedy trial.1

“A court with mandamus authority ‘will grant mandamus relief if relator can

demonstrate that the act sought to be compelled is purely ‘ministerial’ and that relator

has no other adequate legal remedy.’” In re Piper, 105 S.W.3d 107, 109 (Tex. App.—

1Rosario’s petition for writ of mandamus has several procedural deficiencies. See TEX. R. APP. P. 52.3. It does not include the certification required by Rule of Appellate Procedure 52.3(j). See TEX. R. APP. P. 52.3(j). The petition lacks proof of service on the Respondent trial judge and on the Coryell County District Attorney, a Real-Party-in-Interest. See id. 9.5, 52.2. A copy of all documents presented to the Court must be served on all parties to the proceeding and must contain proof of service. Id. 9.5. Because of our disposition and to expedite it, we will implement Rule 2 and suspend these rules. Id. 2. Waco 2003, orig. proceeding) (quoting State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 197-99

(Tex. Crim. App. 2003) (orig. proceeding)). Consideration of a motion properly filed

and before the court is ministerial. State ex rel. Hill v. Ct. of Apps. for the 5th Dist., 34

S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).

Mandamus may issue to compel a trial court to rule on a motion which has been pending before the court for a reasonable period of time. See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex. App.—Waco 2003, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.— Houston [1st Dist.] 1992, orig. proceeding); see also In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). To obtain mandamus relief for such refusal, a relator must establish: (1) the motion was properly filed and has been pending for a reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to rule. See Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at 252; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; see also Shredder Co., 225 S.W.3d at 679. The mere filing of a motion with a trial court clerk does not equate to a request that the trial court rule on the motion. See Hearn, 137 S.W.3d at 685; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. Shredder Co., 225 S.W.3d at 680 (“Relator has made repeated requests for a ruling on its motion.”).

In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding)

(emphasis added).

A trial judge has a reasonable time to perform the ministerial duty of considering

and ruling on a motion properly filed and before the judge. Chavez, 62 S.W.3d at 228.

But that duty generally does not arise until the movant has brought the motion to the

trial judge’s attention, and mandamus will not lie unless the movant makes such a showing

and the trial judge then fails or refuses to rule within a reasonable time. See id. Also,

the mere filing of a pleading or letter with the clerk does not impute knowledge to the

In re Rosario Page 2 trial judge. See In re Flores, No. 04-03-00449-CV, 2003 WL 21480964 (Tex. App.—San

Antonio June 25, 2003, orig. proceeding).

Rosario bears the burden of providing this Court with a sufficient record to

establish his right to mandamus relief. See In re Mullins, 10-09-00143-CV, 2009 WL

2959716, at *1, n.1 (Tex. App.—Waco Sept. 16, 2009, orig. proceeding) (mem. op.); In re

Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). There is

no record showing that Rosario has brought the matter to the attention of the trial judge

and that the trial judge has then failed or refused to rule within a reasonable time.

We deny the petition for writ of mandamus.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Petition denied Opinion delivered and filed February 6, 2014 Do not publish [OT06]

In re Rosario Page 3