Opinion
No. 04-03-00042-CV.
Delivered and Filed: February 12, 2003.
This proceeding arises out of Cause No. 2002-CR-1845B, styled State of Texas v. Venetia Frazier aka Charlene Holland, appealed from the 227th Judicial District Court, Bexar County, Texas, the Honorable Philip A. Kazen, Jr., presiding.
PETITION FOR WRIT OF MANDAMUS DENIED.
Sitting: Alma L. LOPEZ, Chief Justice, Paul W. GREEN, Justice, Sandee Bryan MARION, Justice. Dissenting opinion by: Alma L. Lopez, Chief Justice.
MEMORANDUM OPINION
In this original proceeding, relator Charlene Holland asks that we order the presiding judge of the 227th District Court to hold a hearing and rule on her application for bond pending appeal. For the following reasons, we deny the requested relief.
Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court is required to consider and rule upon a motion within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex.App.-San Antonio 1998, orig. proceeding). "When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act." In re Ramirez, 994 S.W.2d at 683-84 (citing Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding)). The movant must show that the matter was brought to the attention of the trial court and the trial court refused to rule. Barnes v. State, 832, S.W.2d 424, 426-27 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding) (emphasis added).
Holland's "Application for Writ of Habeas Corpus Bail Pending Appeal" was placed in the clerk's record but was never file-stamped. Similarly, Holland's "Motion to Dismiss Counsel and Reappointment (sic) Counsel Pending Appeal" and her letter asking the trial court coordinator to set the application for bond for hearing is contained in the record but not file-stamped. Because of the state of the record, and through no apparent fault of Holland, it does not appear that the application for bond was brought to the attention of the trial court or that the trial court refused to rule on the application. We are confident that the trial court will address the application for bond within a reasonable time now that the request has been brought to its attention. Therefore, we deny the petition for writ of mandamus.
Although not indicated in the title of the motion, this pleading contains a second request for bail pending appeal.
Based on the record we have received from the underlying proceeding, it appears that relator Charlene Holland mailed an application for writ of habeas corpus bond pending appeal to the trial court on November 19, 2002. In a subsequent motion mailed January 6, 2003, Holland included a letter asking the trial court coordinator to set her application for a bail hearing with the judge. At this point, Holland has physically done everything she can possibly do from jail in representing herself pro se and in seeking to obtain a hearing on her application.
Although the majority does not find fault with Holland's actions, the majority does not provide her with any relief. In my opinion, Holland's application was filed and pending before the trial court, and Holland had reminded the trial court of her pending application and her request for a hearing. Under those circumstances, the action required by the trial court in giving Holland's application consideration and in ruling on it was a ministerial act, and mandamus relief is available to require a judge to perform a ministerial act. In re Ramirez, 994 S.W.2d 682, 683-84 (Tex.App.-San Antonio 1998, orig. proceeding). Even assuming that the record is not sufficient for a majority of this court to determine that Holland is entitled to the relief sought, the record is at least sufficient to raise a serious question concerning the requested relief, requiring further consideration; therefore, this court should at least request a response to Holland's petition. See Tex.R.App.P. 52.8(b). Because the majority denies Holland's petition for writ of mandamus without requesting a response, I respectfully dissent.