in Re: Joe Burns Jr.

• Court: Court of Appeals of Texas
• Decided: November 7, 2006
• Docket: 14-06-00856-CV
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed November 7, 2006

Petition for Writ of Mandamus Denied and Memorandum Opinion filed November 7, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00856-CV

IN RE JOE BURNS, JR., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On September 29, 2006, relator Joe Burns, Jr., an inmate, filed a petition for writ of mandamus in this Court, seeking an order compelling the judge of the 30th Judicial District Court, Harris County, to rule on relator=s motion for DNA testing and appointment of counsel.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.1.

 Mandamus relief is appropriate to correct a clear abuse of discretion or the violation of a duty imposed by law, when there is no other adequate appellate remedy.  Walker v. Packer, 827 S.W.2d 833, 839B40 (Tex. 1992) (orig. proceeding).  Where a motion is properly filed and pending before a trial court, the act of considering and resolving it is ministerial, not discretionary.  Ex parte Bates, 65 S.W.3d 133, 134B35 (Tex. App.CAmarillo 2001, orig. proceeding).  But, as the party seeking mandamus relief, a relator has the burden of providing a sufficient record to establish his right to the relief.  In re Aguirre, 161 S.W.3d 8, 9 (Tex. App.CHouston [14th Dist.] 2004, orig. proceeding). 

In his letter to this Court, relator merely states that he has filed a motion in the trial court.  He does not provide a copy of his motion and affidavit, nor any other documents to evidence his entitlement to mandamus relief. 

Accordingly, because relator has failed to provide a record showing he is entitled to the requested mandamus relief, we deny relator=s petition for writ of mandamus without prejudice to refiling with an adequate record.  E.g., In re Molina, 94 S.W.3d 885, 886 (Tex. App.CSan Antonio 2003, orig. proceeding). 

PER CURIAM

Petition Denied and Memorandum Opinion filed November 7, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman.