in Re Leonard Childs

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-09-00678-CR

IN RE Leonard CHILDS

Original Mandamus Proceeding1

PER CURIAM

Sitting: Sandee Bryan Marion, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: November 4, 2009

PETITION FOR WRIT OF MANDAMUS DENIED

On October 21, 2009, relator Leonard Childs filed an Application for Leave to File Petition

for Writ of Mandamus and a Petition for Writ of Mandamus, seeking to compel the trial court to rule

on his pro se motion to dismiss his attorney.

To obtain a writ of mandamus compelling the trial court to consider and rule on a motion,

a relator must establish that the trial 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. In re Molina, 94 S.W.3d 885,

886 (Tex. App.—San Antonio 2003, orig. proceeding). When a properly filed motion is pending

before a trial court, the act of giving consideration to and ruling upon that motion is ministerial, and

1 … This proceeding arises out of Cause No. 2009-CR-2718A, styled State of Texas v. Leonard Childs, in the 186th Judicial District Court, Bexar County, Texas, the Honorable Maria Teresa Herr presiding. 04-09-00678-CR

mandamus may issue to compel the trial judge to act. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d

268, 269 (Tex. App.—San Antonio 1997, orig. proceeding). However, mandamus will not issue

unless the record shows that a properly filed motion has awaited disposition for an unreasonable

amount of time. See id. It is relator’s burden to provide this court with a record sufficient to

establish his right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); TEX . R. APP . P.

52.3(k), 52.7(a).

The record before us fails to establish relator is entitled to the relief requested. Although

relator alleges he filed his motion on October 12, 2009, relator has not provided this court with a file

stamped copy of the motion, a copy of the trial court’s docket, or any other proof that he filed the

motion and that it is pending before the trial court. Even if relator’s motion was properly filed, the

record does not show that relator’s motion has awaited disposition for an unreasonable amount of

time. See Safety-Kleen, 945 S.W.2d at 269 (trial court has reasonable time within which to perform

its ministerial duty).

Accordingly, because relator has not met his burden of providing a record establishing that

a motion was properly filed and has awaited disposition for an unreasonable amount of time, he has

not provided this court with grounds to usurp the trial court’s inherent authority to control its own

docket. See In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.—San Antonio 2004, orig. proceeding).

Accordingly, relator’s petition for writ of mandamus is denied. TEX . R. APP . P. 52.8(a). No leave

is required to file a petition for writ of mandamus, therefore we deny the motion for leave to file as

moot.

DO NOT PUBLISH

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