in Re Michael Scott Toney

Opinion

Opinion issued December 13, 2012

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-01064-CR ——————————— IN RE MICHAEL SCOTT TONEY, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Michael Scott Toney, has filed a pro se petition for writ of

mandamus in this Court. See TEX. GOV’T CODE § 22.221 (Vernon 2004); see also

TEX. R. APP. P. 52. Relator complains that the trial court judge* has not ruled on a

* The respondent is The Honorable Denise Collins of the 208th District Court, Harris County, Texas. This original proceeding arises out of Cause No. 9403369, styled State of Texas v. Michael Toney, 208th District Court, Harris County, post-conviction petition for writ of mandamus that he claims to have filed in the

trial court. In the petition, relator requested the trial court to order the Harris

County District Clerk to correct certain information on its website pertaining to

relator’s 1993 conviction.

To obtain mandamus relief in this Court, relator must establish that the act

sought to be compelled is ministerial and that he has no adequate remedy at law.

State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236

S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). Consideration of a

motion, or, as in this case, a petition for writ of mandamus, that is properly filed

and before the trial court is a ministerial act. See State ex rel. Curry v. Gray, 726

S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding). To establish that the

trial court abused its discretion by failing to rule, a relator must show that the trial

court (1) had a legal duty to perform a nondiscretionary act, (2) was asked to

perform that act, and (3) refused to do so. See Barnes v. State, 832 S.W.2d 424,

426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding).

To obtain mandamus relief for the trial court’s refusal to rule on his

mandamus petition, relator must establish (1) it was properly filed and has been

Texas, the Honorable Denise Collins, presiding. In 1993, a jury found appellant guilty of burglary of a habitation with the intent to commit the offense of aggravated assault and assessed his punishment at 40 years. This Court affirmed his conviction on direct appeal in Toney v. State, No. 01–94–00239–CR, 1996 WL 183411, at *12 (Tex. App.—Houston [1st Dist.] Apr. 18, 1996, pet. dism’d, untimely filed) (not designated for publication). 2 pending for a reasonable time; (2) the relator requested a ruling on the mandamus

petition; and (3) the trial court refused to rule. In re Sarkissian, 243 S.W.3d 860,

861 (Tex. App.—Waco 2008, orig. proceeding). The mere filing of the mandamus

petition with the trial court clerk does not equate to a request that the trial court

rule on petition. See id.

Here, relator has attached a copy of the mandamus petition, which he claims

to have mailed from prison to the district clerk on July 27, 2012. Relator, however,

has not provided this Court with a file-stamped copy of the mandamus petition or

any other documents indicating that a properly filed mandamus petition is pending

before the trial court. See id.; see also TEX. R. APP. P 52.3(k) (requiring certified

or sworn copy of any order complained of, or any other document showing matter

complained of, to be included in appendix); TEX. R. APP. P. 52.7(a)(1) (providing

that relator must file with petition certified or sworn copy of every document that

is material to relator’s claim for relief and that was filed in any underlying

proceeding).

Relator has also attached a copy of a letter dated September 2, 2012

addressed to the trial court, “demanding” that it rule on his mandamus petition.

Relator also attaches (1) a certified mail receipt showing that an item was mailed

on September 10, 2012 to the trial court and (2) a print-out from the post office’s

website indicating delivery of an item to the trial court on September 12, 2012.

3 Assuming that the trial court received the letter, relator has still not shown that the

trial court received or was made aware of the mandamus petition; that is, the

September 12, 2012 letter does not establish that a mandamus petition is pending

before the trial court. See In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.—San

Antonio 2004, orig. proceeding).

Relator also bears the burden of providing a record establishing that his

mandamus petition has awaited disposition by the trial court for an unreasonable

period of time. See id. Whether an unreasonable amount of time has lapsed is

dependent on the circumstances of each case. Barnes, 832 S.W.2d at 426. “[N]o

bright-line demarcates the boundaries of a reasonable time period.” Ex parte

Bates, 65 S.W.3d 133, 135 (Tex. App.—Amarillo 2001, orig. proceeding). 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 id.; see also In re Blakeney, 254 S.W.3d 659, 663

(Tex. App.—Texarkana 2008, orig. proceeding).

Here, the mandamus record is silent as to these considerations. Even if we

were to accept relator’s allegations regarding the filing of the mandamus petition in

the trial court as true, relator has offered no legal authority or evidence showing

4 that the alleged delay in ruling constitutes an unreasonable period of time for the

trial court to consider the mandamus petition. See, e.g., In re Villarreal, 96 S.W.3d

708, 711 (Tex. App.—Amarillo 2003, orig. proceeding) (concluding five-month

delay not per se unreasonable).

Relator has not established his entitlement to the extraordinary relief of a

writ of mandamus. Accordingly, we deny relator’s petition for writ of mandamus.

See TEX. R. APP. P. 52.8(a).

Laura Carter Higley Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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