in Re: Mario Alberto Salazar

• Court: Court of Appeals of Texas
• Decided: December 4, 2008
• Docket: 13-08-00686-CR
• Status: Published

Opinion

NUMBER 13-08-00686-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

IN RE MARIO ALBERTO SALAZAR ____________________________________________________________

On Petition for Writ of Mandamus. ____________________________________________________________

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion Per Curiam1

Relator, Mario Alberto Salazar, an inmate appearing pro se, seeks a writ of

mandamus to compel the trial court to rule on relator’s motion for a judgment nunc pro tunc

addressing pre-sentence jail time credit. We deny the petition for writ of mandamus.

Mandamus may issue to compel a trial court to rule on a motion for judgment nunc

pro tunc addressing jail time credit which has been pending before the court for a

reasonable period of time. See Ex parte Ybarra, 149 S.W.3d 147, 149 (Tex. Crim. App.

2004); In re Sarkissian, 243 S.W.3d 860, 860-61 (Tex. App.–Waco 2008, orig. proceeding).

1 See T EX . R. A PP . P. 52.8(d) (“W hen denying relief, the court m ay hand down an opinion but is not required to do so.”); T EX . R. A PP . P. 47.4 (distinguishing opinions and m em orandum opinions). To obtain mandamus relief for the trial court’s refusal to rule on such a motion, a relator

must establish: (1) the motion was properly filed and has been pending for a reasonable

time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to rule.

See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.–San Antonio 2004, orig. proceeding);

In re Keeter, 134 S.W.3d 250, 252-3 (Tex. App.–Waco 2003, orig. proceeding); In re

Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding); Barnes v. State,

832 S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig. proceeding). The relator

has the burden of providing a record establishing that his motion has awaited disposition

for an unreasonable time. In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.–San Antonio

2004, orig. proceeding). Moreover, merely filing a motion with a district or trial court clerk

does not equate to a request that the trial court rule on the motion. See Hearn, 137

S.W.3d at 685; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426. Courts consider

several factors in determining whether the trial court has unnecessarily delayed a ruling,

including the trial court's actual knowledge of the motion, its overt refusal to act on it, the

state of the court's docket, the court's inherent power to control its docket, and the

existence of other judicial and administrative matters which must be addressed. See Ex

parte Bates, 65 S.W.3d 133, 135 (Tex. App.–Amarillo 2001, orig. proceeding).

Relator has included in his appendix a copy of a letter that he addressed to the Bee

County District Clerk, dated August 15, 2008, asking the clerk to file his enclosed motion

for nunc pro tunc credit. The letter and attached motion are not file-stamped by the district

clerk and there is no proof that the trial court ever received or reviewed the letter and

motion. Thus, there is nothing in the limited record before this Court to establish that

relator ever requested a ruling on his motion for judgment nunc pro tunc or otherwise called

that motion to the trial court’s attention. See In re Daisy, 156 S.W.3d 922, 924 (Tex.

2 App.–Dallas 2005, orig. proceeding) (granting mandamus relief when record contained

several letters from the trial court explaining why relator's motion related to jail time credit

would not be ruled on). Nor does the record show the status of the trial court's docket.

Accordingly, the Court, having examined and fully considered the petition for writ of

mandamus, is of the opinion that relator has not shown himself entitled to the relief sought,

and the petition for writ of mandamus should be denied. See TEX . R. APP. P. 52.8. We

DENY the petition for writ of mandamus.

PER CURIAM

Do not publish. See TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed this the 4th day of December, 2008.