in Re Thomas Florence

• Court: Court of Appeals of Texas
• Decided: January 25, 2011
• Docket: 14-10-01228-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 25, 2011.

In The

Fourteenth Court of Appeals

____________

NO. 14-10-01228-CR

THOMAS FLORENCE, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

56th District Court

Galveston County, Texas

Trial Court Cause No. 10CR1217

M E M O R A N D U M   O P I N I O N

            On December 15, 2010, relator filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  Relator requests we “compel the Honorable Court to bring the relator before the court to rule on said ‘probable cause motion’ . . .”

            To be entitled to mandamus relief, a relator must show that he has no adequate remedy at law to redress his alleged harm, and what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. 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 that is properly filed and before the court is a ministerial act.  State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App.1987) (orig.proceeding) (op. on reh'g).  A relator must establish the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so.  In re Keeter, 134 S.W.3d 250, 252 (Tex. App. -- Waco 2003, orig. proceeding).  A relator must show that the trial court received, was aware of, and asked to rule on the motion.  In re Villarreal, 96 S.W.3d 708, 710 (Tex. App. -- Amarillo 2003, orig. proceeding). 

Relator has not provided a file-stamped copy of his motion to demonstrate that it is actually pending in the trial court.  Absent proof that the trial court has been requested to rule on a motion, 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.

                                                                        PER CURIAM

Panel consists of Justices Seymore, Boyce, and Christopher.

Do Not Publish — Tex. R. App. P. 47.2(b).