in Re Gary Lee Mount

• Court: Court of Appeals of Texas
• Decided: January 10, 2019
• Docket: 14-18-01101-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 10, 2019.

In The

Fourteenth Court of Appeals

NO. 14-18-01101-CR

IN RE GARY LEE MOUNT, Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS 248th District Court Harris County, Texas Trial Court Cause No. 1449196

MEMORANDUM OPINION On Friday, December 28, 2018, relator Gary Lee Mount filed a petition for writ of mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator complaining that the Honorable Katherine Cabaniss Parsley, former presiding judge of the 248th District Court of Harris County, 1 has failed to provide him with certain information regarding motions he has filed under chapter 64 of the Texas Code of Criminal Procedure, which governs DNA testing. He asks this court to compel the trial

1 The Honorable Hillary Unger became the presiding judge of the 248th District Court on January 1, 2019. judge to appoint counsel for him and conduct a hearing on his motions.

“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.” In re Henry, 525 S.W.3d 381 (Tex. App.–Houston [14th Dist.] 2017, orig. proceeding) (per curiam). However, to be entitled to such relief, 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. The record must show both that the motion was filed and the trial court has not ruled on the motion within a reasonable time after being requested to do so. See In re Foster, 503 S.W.3d 606, 607 (Tex. App.–Houston [14th Dist.] 2016, orig. proceeding) (per curiam).

Appellant made no such showing. Further, Judge Parsley is no longer on the bench, so we cannot compel her to act and therefore cannot grant the requested act. We will not order the current trial judge to act until relator has properly presented the motion to the current trial judge.

Because we cannot grant the requested relief, we deny the petition for mandamus.

PER CURIAM

Panel consists of Justices Christopher, Hassan, and Poissant. Do Not Publish—Tex. R. App. P. 47.2(b).