In Re Mendoza

131 S.W.3d 167, 2004 Tex. App. LEXIS 314, 2004 WL 57059

• Court: Court of Appeals of Texas
• Decided: January 14, 2004
• Docket: 04-03-00933-CV
• Status: Published

Opinions

OPINION

Opinion by SANDEE BRYAN MARION, Justice.

On December 18, 2003, relator filed a petition for writ of mandamus, asking this court to order the trial court to rule on his application for writ of habeas corpus bail pending. A trial court is required to consider and rule upon a motion within a reasonable time. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding). When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act. Id. However, the trial court has a reasonable time within which to perform this ministerial duty. Id. Accordingly, if a court unnecessarily delays ruling, mandamus will he in appropriate situations. Here, relator has not provided this court with copies of his applications for a writ of habeas corpus, a copy of the trial court’s docket, or any other proof that these applications are pending before the trial court. It is the 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(j), 52.7(a).

However, copies of relator’s application are contained in the clerk’s record in a related appeal pending before this court.² It appears relator filed three identical applications, on October 8, 2003; October 13, 2003; and October 15, 2003. Three months have expired since the filing of the applications. Without evidence of the trial court’s overt refusal to entertain the applications (which evidence is absent here), we cannot hold as a matter of law that the passage of three months constitutes a per se unreasonable time period. Nor will we presume from the mere passage of three months that the trial court has refused to act upon the applications.

Because relator has not met his burden of providing a record establishing that his applications have awaited disposition for an unreasonable 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 Chavez, 62 S.W.3d 225 (Tex.App.-Amarillo 2001) (orig.proceeding). Therefore, this court has determined that relator is not entitled to the relief sought, and the petition is denied. Tex.R.App. P. 52.8(a).

Concurring opinion by ALMA L. LÓPEZ, Chief Justice.

Concurring opinion by ALMA L.

2 . Relator’s direct appeal from his conviction is pending in appellate cause number 04-03-00704-CR, styled Angel Mendoza, v. The State of Texas.