in Re Joe Anthony Espinoza

• Court: Court of Appeals of Texas
• Decided: January 8, 2020
• Docket: 04-19-00838-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION No. 04-19-00838-CV

IN RE Joe Anthony ESPINOZA

Original Mandamus Proceeding 1

Opinion by: Patricia O. Alvarez, Justice

Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

Delivered and Filed: January 8, 2020

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

On December 2, 2019, relator filed a petition for writ of mandamus complaining of the trial

court’s refusal to rule on his “Motion to Dismiss for Lack of Jurisdiction.” Real party in interest,

Mie Doak, filed a response to the petition in which she stated “no objection to . . . [relator] asking

for a Trial Court ruling on the issue of standing.” We conditionally grant the petition for writ of

mandamus.

DISCUSSION

Relator filed a motion to dismiss in February 2019. The trial court conducted a hearing on

the motion on March 25, 2019. Since that date, the trial court has refused to issue a ruling on

relator’s motion although the court continues to issue other rulings in the underlying case.

1 This proceeding arises out of Cause No. 1915-C, styled In the Interest of J.A.E., Jr., a Child, pending in the County Court at Law, Kerr County, Texas, the Honorable Susan Harris presiding. 04-19-00838-CV

“A trial court is required to consider and rule on a motion within a reasonable time.” Safety-

Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, 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.” Id. (citation omitted). However, while we have jurisdiction to direct the trial court

to proceed to judgment, we may not tell the court what judgment it should enter. Crofts v. Court

of Civil Appeals, 362 S.W.2d 101, 105 (Tex. 1962) (orig. proceeding).

Relator’s motion to dismiss has been pending for over ten months. Because the trial court

has erred by not ruling on relator’s motion within a reasonable time, we conditionally grant

relator’s petition for writ of mandamus. The writ will issue only if the trial court fails to rule on

relator’s motion to dismiss within fourteen days of this opinion.

Patricia O. Alvarez, Justice

-2-