Opinion
No. 10-06-00285-CV
Opinion delivered and filed October 25, 2006.
Original Proceeding.
Petition denied.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
(Chief Justice GRAY concurs in the judgment only, noting he voted to deny the petition when the majority requested a response. Further, Chief Justice GRAY notes that the time between when the expunction petition was filed and the mandamus was filed did not change as a result of requesting a response.)
MEMORANDUM OPINION
Relator Chad Davis seeks a writ of mandamus, complaining that Respondent, the Honorable Steve Smith, Judge of the 361st District Court, has not ruled on his two petitions for expunction that were filed on June 21, 2006, approximately ninety days before the petition for writ of mandamus was filed. See generally TEX. CODE CRIM. PROC. ANN. arts. 55.01-.06 (Vernon Supp. 2006).
A trial judge has a reasonable time to perform the ministerial duty of considering and ruling on a motion properly filed and before the judge. In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001, orig. proceeding); In re Martinez Ramirez, 994 S.W.2d 682, 683-84 (Tex.App.-San Antonio 1998, orig. proceeding). Whether the judge has acted within a reasonable period of time depends on the circumstances of the case. See Martinez Ramirez, 994 S.W.2d at 684. But that duty generally does not arise until the movant has brought the motion 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 Chavez, 62 S.W.3d at 228.
In response to Davis's petition for writ of mandamus, the State, citing In re Ford, asserts that Davis has not shown that he has brought his expunction petitions to the trial judge's attention. See In re Ford, 2004 WL 2237926 (Tex.App.-San Antonio Oct. 6, 2004, orig. proceeding) (mem. op.) (holding that movant had not shown he had brought expunction petition to trial judge's attention).
The State also asserts that Davis is not entitled to mandamus relief because his expunction petitions are defective because they are not verified. See TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(b) (stating the petition must be verified). We agree that the expunction petitions are not verified (and may have other defects pointed out by the State), but that is not a ground for failing or refusing to set them for hearing as statutorily required.
We disagree that a party filing an expunction petition must bring it to the trial court's attention. The expunction statute imposes an independent duty on the trial court to set a hearing on the petition: "The court shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give to each official or agency or other entity named in the petition reasonable notice of the hearing. . . ." TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(c) (emphasis added).
Moreover, each of Davis's transmittal letters that accompanied his expunction petitions requested the district clerk to "bring it [his petition] to the attention of the court" and to inform him "when the Court sets this motion for a hearing." While the statute suffices to require the trial court to set a hearing on an expunction, we would find that Davis's requests (Davis, a state prison inmate, is proceeding pro se) in his two letters also suffice to have brought the matters to the trial court's attention.
We conclude, however, that under the circumstances of these expunction cases, we cannot say that ninety days is a reasonable time per se to require a trial court to have set for hearing a petition for expunction. See Ford, 2004 WL 2237926 (implying that two months since filing of expunction petition was not a reasonable time for requiring the trial court to have acted). Thus, we deny the petition for writ of mandamus.