in Re Weldon Cowan

• Court: Court of Appeals of Texas
• Decided: December 13, 2012
• Docket: 03-12-00795-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00795-CV

In re Weldon Cowan

ORIGINAL PROCEEDING FROM BURNET COUNTY

MEMORANDUM OPINION

Relator Weldon Cowan, an inmate in the Texas Department of Criminal Justice, filed

a pro se petition for writ of mandamus asking this Court to compel the district judge of the 33rd

Judicial District Court of Burnet County to rule on his Motion for Speedy Trial, Alternative Motion

to Dismiss. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. We deny

the petition.

Mandamus relief is an extraordinary remedy. In re Southwestern Bell Tel. Co.,

235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding); In re Braswell, 310 S.W.3d 165, 166 (Tex.

App.—Amarillo 2010, orig. proceeding). To be entitled to mandamus relief in a criminal case, a

relator must establish that: (1) he has no other adequate legal remedy to redress the alleged harm,

and (2) under the relevant facts and law, the act sought to be compelled is purely ministerial, not

involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of

Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding); State ex rel. Hill v. Court

of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding). An act

is ministerial if it does not involve the exercise of any discretion and the relator has a clear right to relief. State ex rel. Hill, 34 S.W.3d at 927; In re Daisy, 156 S.W.3d 922, 924 (Tex. App.—Dallas

2005, orig. proceeding). The relief sought must be clear and indisputable, such that its merits are

beyond dispute. See State ex rel. Hill, 34 S.W.3d at 927–28; Daisy, 156 S.W.3d at 924.

Consideration of a request or motion that is properly filed and before the court is a

ministerial act. State ex rel. Hill, 34 S.W.3d at 927; State ex rel. Curry v. Gray, 726 S.W.2d 125,

128 (Tex. Crim. App. 1987) (orig. proceeding). To obtain mandamus relief for the trial court’s

refusal to rule on a motion, a relator must establish: (1) the motion was properly filed and has been

pending for a reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court

refused to rule. In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding);

In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding). A relator must

show that the trial court received, was aware of, and was asked to rule on the motion. In re

Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); In re Villarreal,

96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding).

It is relator’s burden to properly request and show entitlement to mandamus relief.

Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); In re Davidson, 153 S.W.3d 490, 491 (Tex.

App.—Amarillo 2004, orig. proceeding); see Barnes v. State, 832 S.W.2d 424, 426 (Tex.

App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of mandamus

must show himself entitled to the extraordinary relief he seeks.”). In this regard, the relator must

provide the reviewing court with a record sufficient to establish his right to mandamus relief. See

Walker, 827 S.W.2d at 837; Blakeney, 254 S.W.3d at 661; see also Tex. R. App. P. 52.7(A) (relator

must file with petition “a certified or sworn copy of every document that is material to the relator’s

2 claim for relief and that was filed in any underlying proceeding”), 52.3(k) (specifying required

contents for appendix), 52.7(a) (specifying required contents for record).

Cowan asserts in his petition that he filed his motion for speedy trial on

April 18, 2012 with the Burnet County District Clerk. However, he has failed to provide this Court

with a copy of his motion or any other documents to show that a properly filed motion is pending

before the trial court. Consequently, there is no way for us to determine whether the motion was

properly filed or, if it was, the date on which it was received by either the clerk’s office or the judge.

Even if we assume that the motion was properly filed on the date he claims, Cowan has not

demonstrated that the motion has been brought to the trial court’s attention or that the court is aware

of the motion. See Hearn, 137 S.W.3d at 685 (simply filing matter with district clerk is not

sufficient to impute knowledge of pending pleading to trial court). He has failed to provide any

correspondence to the district court requesting a ruling on the motion or any other document that

shows that he brought the motion to the attention of the trial court. See Sarkissian, 243 S.W.3d at

861 (mere filing of motion with trial court clerk does not constitute request that trial court rule on

motion). Furthermore, Cowan has failed to provide anything indicating that the trial court has

refused to rule on the motion.

Absent a showing that the trial court is aware of the motion, has been asked to rule

on his request, and refused to do so, Cowan has not established entitlement to the extraordinary relief

of a writ of mandamus. See In re Lucio, No. 03-12-00056, 2012 WL 593533, at *2 (Tex.

App.—Austin Feb. 23, 2012, org. proceeding) (mem. op.) (mandamus relief denied because relator

failed to provide copy of motion, any correspondence to district court requesting ruling on motion,

3 or anything indicating district court refused to rule on motion). Accordingly, we deny the petition

for writ of mandamus.

__________________________________________ Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Filed: December 13, 2012