in Re: John Jacob Presley

Opinion

NO.

laiszooasff-cg- S S s ^Appeate District

IN THE COURT OF APPEALS OCT 162015

FOR THE TWELFTH SUPREME JUDICIAL DISTRIi TYUER TEXAS j*WESTES, CLERK

TYLER, TEXAS

JOHN JACOB PRESLEY,

Relator

v.

PRESIDING JUDGE, 420TH JUDICIAL DISTRICT COURT, Respondent

APPLICATION FOR A WRIT OF MANDAMUS FROM NACOGDOCHES COUNTY

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, John Jacob Presley, Relator in the above-styled and numbered cause of action and files this Application for a Writ of Mandamus. In support of this application Relator submits the following:

RELATOR

Relator has exhausted his remedies and has no other adequate remedy at law.

The act sought to be compelled is ministerial and not dis cretionary in nature. Texas Code of Criminal Procedure Article 11.07 provides the 420th Judicial District Court with limited

jurisdiction over habeas corpus proceedings when, as here, Relator was convicted within its court, which was cause number F1017393.

Relator filed his Applicant's Motion for Leave to Conduct Discovery and Applicant's Motion for Appointment of Counsel in the 420th Judicial District Court on or about the 13th day of August, 2015. In said documents, Relator requested leave to con duct discovery and appointment of counsel in a habeas corpus pro ceeding under Article 11.07 of the Texas Code of Criminal Proced ure.

Respondent has failed to enter a ruling on Relator's motions.

Had Respondent made such a ruling, Relator would have received a copy of the court's orders from the court clerk. Over 60 days have lapsed since the filing of said documents and there is no statute that requires the presiding judge to enter a ruling within any specific amount of time. Additionally, there is no statute that renders a motion denied by operation of law when the presiding judge refuses to act. Relator cannot proceed with his application for a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure without a ruling on his motions.

RESPONDENT

Respondent, Presiding Judge, in his official capacity as Judge of the 420th Judicial District Court of Nacogdoches County, Texas, has a duty to enter decisions in criminal matters before the court within a reasonable amount of time.

Respondent is in violation of Chapter 4 and Article 11.07 of the Texas Code of Criminal Procedure by failing to enter a ruling on Relators motions.

In contrast to Relator's efforts, Respondent has wholly failed to comply with Chapter 4 and Article 11.07, is acting in bad faith, and has failed to afford Relator the professional and common courtesy of any response to his requests.

AUTHORITY

An applicant can file an application for a writ of mandamus, requesting the trial court judge be ordered to rule on his appli

cations. Ex parte Cozzi, 138 S.W.3d 454, 455 (Tex. App.-Fort Worth 2004). Where, as here, the trial court judge refuses to rule on

motions related to his application, Relator can file an applica tion for writ of mandamus, requesting the trial court judge be ordered to rule on his motions.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Relator respectfully requests a finding that Respondent has not made a ruling on his Motion for Leave to Conduct Discovery and Motion for Appointment of Counsel within a reasonable amount of time. Relator prays that an order directing Respondent to rule on said motions within 30 days be issued. Relator further prays for any and all other relief to which he may be entitled. Dated: October 13, 2015. Respectfully .s-abmitted,

O0HN JA#0B PRESLEY

RELATC

TDCJ No. 01690033

Mark W. Michael Unit

2664 FM 2054

Tennessee Colony, Texas 75886

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the fore going application has been served by placing same in the United States Mail, postage prepaid, on the 13th day of October, 2015, addressed to:

Presiding Judge 420th Judicial District Court 101 W. Main Street Nacogdoches, Texas 75961

John Jacob Presley

TDCJ No. 01690033; Mark W. Michael Unit 2664 FM 2054, Tennessee Colony, Texas 75j&£6^5000

October 13, 2015 12»LCourtofAppeaJs Disfricf OCT I f?0j5

Clerk of the Court Twelfth Court of Appeals 1517 West Front Street, Suite 354 i7YLEtfTEXAS Tyler, Texas 75702 R4MESTES, CLERK RE: Original Application for a Writ of Mandamus

Dear Hon. Clerk:

Enclosed for filing with the Twelfth Court of Appeals is an Application for a Writ of Mandamus. Please file said document and bring it to the attention of the Court.

Thank you for your assistance in this matter.

Very, truly yoZirs

fOHN J^tOB PRESL RELAT0R

CC w/encl: File

Presiding Judge

420th Judicial District Court 101 W. Main Street

Nacogdoches, Texas 75961