In Re: Jane Lynch v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 27, 2023
• Docket: 05-23-00113-CV
• Status: Published

Opinion

DENIED and Opinion Filed March 27, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00113-CV

IN RE JANE LYNCH, Relator

Original Proceeding from the County Criminal Court of Appeals No. 1 Dallas County, Texas Trial Court Cause No. MC-22-A2151

MEMORANDUM OPINION Before Justices Pedersen, III, Smith, and Kennedy Opinion by Justice Smith In this original proceeding, Jane Lynch petitions for a writ of mandamus to

compel the county criminal court of appeals (“CCCA” herein) to rule on an amended

motion for reconsideration she filed seeking relief from an order the CCCA entered

denying her mandamus relief. The mandamus proceeding in the CCCA arose from

two convictions in municipal court that relator wanted to appeal without filing the

necessary appeal bond. See TEX. GOV’T CODE ANN. § 30.00015 (requiring defendant

to post appeal bond before taking an appeal from judgment of municipal court of

record). Relator took the position that she should not have to file an appeal bond

because a county court had entered an order finding her indigent in unrelated

litigation several months before her effort to appeal the municipal court judgments. Relator reports that the amended motion for reconsideration at issue in this

mandamus proceeding was overruled by operation of law. Relator concludes she was

denied the right to appeal the municipal court judgments.

To establish a right to mandamus relief in a criminal case, relator must show

that the trial court violated a ministerial duty and there is no adequate remedy at law.

In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig.

proceeding). To obtain mandamus relief for a trial court’s failure to rule on a motion,

relator must show 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 to do so. In re Prado, 522 S.W.3d 1,

2 (Tex. App.—Dallas 2017, orig. proceeding).

Relator bears the burden to provide the Court with a sufficient record to

establish her right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.

1992) (orig. proceeding); TEX. R. APP. P. 52.3, 52.7. The record must contain

certified or sworn copies of all relevant orders and material documents that show the

matter complained of or that were filed in the underlying proceeding. See TEX. R.

APP. P. 52.3(k)(1)(A), 52.7(a)(1).

To meet her burden, relator has attached to her amended petition uncertified

and unsworn copies of the order from the CCCA denying her petition for writ of

mandamus and a cache of emails between relator and court officials on which relator

has placed her own editorial headings. Relator’s petition includes a verification of

–2– the documents, but it is insufficient to authenticate the documents as sworn copies.

See TEX. CIV. PRAC. & REM. CODE ANN. § 132.001(d).

In addition to the documents not being properly authenticated, relator’s record

is also incomplete. The record does not include copies of the amended mandamus

petition and the motion for reconsideration relator contends the CCCA should have

granted. Nor are there any documents showing her municipal court convictions,

efforts to effectuate her appeal, or showing that her appeal was dismissed. Thus,

relator has failed to provide a record of certified or sworn documents sufficient to

support her petition. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a); In re Butler, 270

S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding).

In addition to the problems with her record, relator also cannot show that the

respondent court violated a ministerial duty to rule on her amended motion. A

motion for reconsideration is equivalent to a motion for new trial. See In re Gonzalez,

No. 04-18-00170-CR, 2018 WL 1610916, at *1 (Tex. App.—San Antonio Apr. 4,

2018, orig. proceeding) (per curiam) (mem. op., not designated for publication).

Trial courts do not have a ministerial duty to rule on motions for reconsideration

because the passage of time will overrule them by operation of law. See id. Relator

concedes her motion for reconsideration was overruled by operation of law. Thus,

relator cannot show the CCCA violated a ministerial duty by failing to rule on her

motion for reconsideration rather than allowing it to be overruled by operation of

law. See id.

–3– Because relator’s petition is not supported with a proper record and because

relator has not established the trial court had a legal duty to rule on her amended

motion for reconsideration, we conclude relator has not shown she is entitled to

mandamus relief. See Prado, 522 S.W.3d at 2; Butler, 270 S.W.3d at 759; Gonzalez,

2018 WL 1610916, at *1.

Accordingly, we deny the petition. See TEX. R. APP. P. 52.8(a).

/Craig Smith/ CRAIG SMITH JUSTICE

230113F.P05

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