in Re Luther Hilliard

Opinion

MEMORANDUM OPINION No. 04-11-00395-CR

IN RE Luther HILLIARD

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: July 13, 2011

PETITION FOR WRIT OF MANDAMUS AND PETITION FOR WRIT OF PROHIBITION DENIED

On June 6, 2011, relator filed a petition entitled “petition for writ of mandamus and writ

of prohibition.” Relator complains the trial court failed to award him the correct amount of

presentence jail time. Relator asserts he filed a nunc pro tunc in the trial court on March 29,

2011. However, in order to be entitled to mandamus relief, 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 mandamus may issue to

1 This proceeding arises out of Cause No. 2010-CR-1403, styled State of Texas v. Luther Hilliard, in the 226th Judicial District Court, Bexar County, Texas, the Honorable Sid L. Harle presiding. 04-11-00395-CR

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 indicates that a properly filed motion has awaited disposition for an unreasonable amount

of time. See id. Relator has the burden of providing this court with a record sufficient to

establish his right to mandamus relief. See TEX. R. APP. P. 52.7(a) (“Relator must file with the

petition [ ] a certified or sworn copy of every document that is material to the relator’s claim for

relief and that was filed in any underlying proceeding”); see also TEX. R. APP. P. 52.3(k)(1)(A);

Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992).

Here, relator has not provided this court with a file stamped copy of his motion or any

other documents to show that a properly filed motion is pending before the trial court and has

been brought to the trial court’s attention. Therefore, relator has failed to meet his burden. See

id. Based on the foregoing, we conclude relator has not shown himself entitled to mandamus

relief.

To the extent relator seeks relief by a petition for writ of prohibition, such relief is also

denied. This court’s authority to issue writs of prohibition is limited to those necessary to

enforce our jurisdiction. See TEX. GOV’T CODE ANN. § 22.221(a) (West 2004); In re Garza, 153

S.W.3d 97, 103 (Tex. App.—San Antonio 2004, orig. proceeding). Relator has not established

the writ he seeks is necessary to enforce this court’s jurisdiction. Accordingly, relator’s petition

for writ of mandamus and writ of prohibition are DENIED. See TEX. R. APP. P. 52.8(a).

DO NOT PUBLISH

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