in Re Shane Mix

• Court: Court of Appeals of Texas
• Decided: October 30, 2019
• Docket: 10-19-00367-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00367-CR

IN RE SHANE MIX

Original Proceeding

MEMORANDUM OPINION

Shane Mix, a jail inmate, seeks a mandamus to compel the trial court to rule on

Mix’s application for writ of habeas corpus. There are numerous procedural problems

with the petition, such as no service on the trial court judge as the respondent and the

State as the real-party-in-interest, no certification, no appendix, and no record, as

required by the Rules of Appellate Procedure. See TEX. R. APP. P. 9.5; 52.3(j), (k); 52.7.

However, we use Rule 2 to dispense with these requirements and proceed to a timely

disposition of the petition.

Mix contends he filed an application for writ of habeas corpus under article 11.08

of the Texas Code of Criminal Procedure on October 7, 2019, and the trial court has

ignored him. He has provided no record to support this contention. The need to consider and rule on a properly filed and presented request for relief

is not a discretionary act but a ministerial one, and a trial court is allowed a reasonable

time within which to perform that act. In re Chavez, 62 S.W.3d 225, 228-229 (Tex. App.—

Amarillo 2001, orig. proceeding). The duty to act, however, generally does not arise until

the movant has brought the request for relief to the trial judge's attention; and mandamus

will not lie unless the movant makes such a showing, and the trial judge then fails or

refuses to rule within a reasonable time. See id. at 228. Whether a reasonable time has

lapsed is dependent upon the circumstances of each case. Ex parte Bates, 65 S.W.3d 133,

135 (Tex. App.—Amarillo 2001, orig. proceeding). Mix bears the burden of providing this

Court with a sufficient record to establish his right to mandamus relief. In re Blakeney,

254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).

Assuming Mix filed his application on the date alleged, it has been pending with

the trial court for less than 30 days. While some pleadings necessitate expedited

dispositions, Mix has not explained why the trial court not ruling on his article 11.08

application for writ of habeas corpus is an abuse of discretion under the facts of his case.

In point of fact, Mix has not provided any explanation of what the facts of his application

for writ of habeas corpus are such that an expedited disposition is necessary. Thus, Mix

has not carried his burden to show that the trial court has had a reasonable time within

which to rule on Mix’s application.

Accordingly, Mix’s petition for writ of mandamus is denied without prejudice to

Mix filing a new petition for writ of mandamus if: 1) the trial court does not rule on Mix’s

application for writ of habeas corpus after a reasonable time; 2) Mix has served his new

In re Mix Page 2 mandamus petition on all the parties as required; and 3) Mix has provided a record

showing his entitlement to relief as required.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Petition denied Opinion delivered and filed October 30, 2019 Do not publish [OT06]

In re Mix Page 3