in Re: Tommy Perkins

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

_________________________

No. 06-12-00068-CV ______________________________

IN RE: TOMMY PERKINS

Original Mandamus Proceeding

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION

Tommy Perkins has filed a petition for writ of mandamus requesting this Court order the

Honorable Eric Clifford, presiding judge of the 6th Judicial District Court, to rule on his petition

for expunction of records.1 Perkins alleges he was convicted on July 29, 1993, of capital murder

of Phillip Kinslow and filed a petition in June 2008 for expunction of the charge of murder of

Phillip Kinslow, a charge which had been abandoned by the State at the capital murder trial.

Perkins has attached a copy of the petition for expunction2 and a copy of a docket sheet

indicating the late Honorable Jim D. Lovett, who was formerly the presiding judge of the 6th

Judicial District Court, “passed” on the petition on June 22, 2008.

Mandamus issues only when the mandamus record establishes (1) a clear abuse of

discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate

remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); see In re Columbia Med.

Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding). The

Texas Supreme Court has adopted a balancing test to determine whether a party has an adequate

remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig.

proceeding); In re AIU Ins. Co., 148 S.W.3d 109, 115 (Tex. 2004) (orig. proceeding). Relator

must establish that the trial court (1) had a ministerial duty to perform the act, (2) was asked to

1 The Texas Code of Criminal Procedure provides a right to an expunction of criminal records under certain circumstances such as an acquittal or pardon. See TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2012). 2 We dismissed a prior petition for writ of mandamus based on failure to provide an adequate record. See In re Perkins, No. 06-12-00097-CR (Tex. App.—Texarkana June 13, 2012, orig. proceeding) (not designated for publication).

2 perform the act, and (3) failed or refused to do so. In re Molina, 94 S.W.3d 885, 886 (Tex.

App.—San Antonio 2003, orig. proceeding).

Perkins has received the relief requested. We note a trial court has a ministerial duty to

consider and rule on a properly filed and pending motion within a reasonable time. See In re

Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana 2005, orig. proceeding). In general, we

have mandamus jurisdiction to direct the trial court to make a decision, but we may not tell the

trial court what that decision should be. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—

Texarkana 2008, orig. proceeding); cf. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 n.3

(Tex. Crim. App. 2003) (orig. proceeding) (mandamus may lie to compel trial court “to rule a

certain way” when “nothing is left to” the discretion of trial court). Pursuant to Rule 7.2(b) of

the Texas Rules of Appellate Procedure, we abated this case for the Honorable Eric Clifford,

presiding judge of the 6th Judicial District Court, to reconsider the refusal to rule of the late

Honorable Jim D. Lovett. See TEX. R. APP. P. 7.2. On July 31, 2012, the Honorable Eric

Clifford denied Perkins’ petition for expunction. Perkins has now received the relief requested—

his petition for expunction of records has been ruled on.

For the reasons stated, we deny mandamus relief.

Bailey C. Moseley Justice

Date Submitted: September 4, 2012 Date Decided: September 5, 2012