Opinion
NO. 14-13-00556-CRNO. 14-13-00557-CRNO. 14-13-00558-CR
07-11-2013
IN RE TODD WARREN ALTSCHUL, Relator
Petition for Writ of Mandamus Denied and Memorandum Opinion filed July 11, 2013.
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause Nos. 23,557, 26,672 & 26,673
MEMORANDUM OPINION
On June 26, 2013, 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. In the petition, relator asks this Court to compel the Honorable Ben Hardin, presiding judge of the 23rd District Court of Brazoria County to rule on his motion for a judgment nunc pro tunc for appeal time credit.
To be entitled to mandamus relief in a criminal case, 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). When a motion is properly filed and pending before a trial court, the act of considering and resolving it is ministerial, not discretionary. Ex parte Bates, 65 S.W.3d 133, 134-35 (Tex. App.—Amarillo 2001, orig. proceeding).
This court is empowered to compel by writ of mandamus a district court to consider and rule on properly filed pending motions if (1) relator has asked the trial court to rule, and (2) the trial court either refused to rule or failed to rule within a reasonable time. See Barnes v. State, 832 S.W.2d 424, 426, 427 (Tex. App.— Houston [1st Dist.] 1992, orig. proceeding); Von Kolb v. Koehler, 609 S.W.2d 654, 655-56 (Tex. Civ. App.—El Paso 1980, no writ). There is no bright-line rule establishing a reasonable time period. Ex parte Bates, 65 S.W.3d at 135. Some of the factors involved in the determination include the trial court's actual knowledge of the motion, any overt refusal to act on it, and the state of the trial court's docket. See id. (citing Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.1979)). A relator has the burden of providing this court with a sufficient record to establish his right to mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992) (orig. proceeding); see Tex. R. App. P. 52.3, 52.7.
The record contains a copy of the motion filed May 22, 2013. We decline to find that a trial court's failure to rule in less than forty days constitutes a refusal to rule.
Relator also asks this court to declare section 14.002(a) of the Texas Civil Practice and Remedies Code unconstitutional. Because section 14.002(a) is not applicable in this instance, we will not entertain relator's request.
For these reasons, relator has not established his entitlement to the extraordinary relief of a writ of mandamus and we deny relator's petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Boyce, Jamison and Busby. Do Not Publish — Tex. R. App. P. 47.2(b).