in Re Kenneth Green

• Court: Court of Appeals of Texas
• Decided: January 15, 2009
• Docket: 14-09-00020-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 15, 2009

Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 15, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-09-00020-CR

IN RE KENNETH GREEN, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On January 9, 2009, relator Kenneth Green filed a petition for writ of mandamus.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  Relator asks this court to compel the Honorable Michael T. McSpadden, judge of the 209th District Court to rule on a motion allegedly filed in that court.  We deny relator=s petition.

Attached to relator=s petition is a document titled, ADefendant=s Motion for the Recusal/Disqualification of the Honorable Michael T. McSpadden, and for Dismissal of State Appointed Counsel, and Appointment of New Counsel.@  Relator claims he filed the motion with the trial court and the court has refused to rule. 

To be entitled to mandamus relief, a relator must demonstrate that the trial court clearly abused its discretion, and that relator has no adequate remedy by appeal. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex.2007).  Consideration of a motion properly filed and before a trial court is ministerial.  White v. Reiter, 640 S.W.2d 586, 594 (Tex. Crim. App. 1982).  A district court may be compelled via mandamus to consider and rule on a pending motion presented to the court.  In re Christensen, 39 S.W.3d 250, 251 (Tex. App.CAmarillo 2000, orig. proceeding).  The trial court has no discretion to refuse to act, but must consider and rule on the motion within a reasonable time.  Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.CHouston [1st Dist.] 1992, orig. proceeding).  However, a trial court cannot be found to have abused its discretion until the complainant establishes that the court (1) had a legal duty to perform a non-discretionary act, (2) was asked to perform the act, and (3) failed or refused to do so.  O=Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992).

In this case, the record does not reflect that the motion was filed with the court or that the court refused to rule on the motion.  The motion attached to the petition is not dated and does not bear a file stamp.  Therefore, relator failed to establish that the trial court was asked to perform the ministerial act of ruling on the motion or that the court failed or refused to do so.

Accordingly, we deny the petition for writ of mandamus.

PER CURIAM

Panel consists of Justices Frost, Brown, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).