Opinion
No. 04-06-00268-CV
Delivered and Filed: May 24, 2006.
This proceeding arises out of Cause No. 2005-CR-5604, styled State of Texas v. Vernie Hurd, pending in the 175th Judicial District Court, Bexar County, Texas, the Honorable Mary Román presiding.
Petition for Writ of Mandamus Denied.
Sitting: Catherine STONE, Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
On April 24, 2006, Vernie L. Hurd filed a pro se petition for a writ of mandamus asking this court to compel the trial court to "dismiss" his court-appointed counsel and appoint new counsel to represent him in the underlying criminal proceeding. To obtain mandamus relief in criminal law matters in the courts of appeals, a relator must establish that: (1) the act he seeks to compel is ministerial, rather than discretionary in nature, or that the trial court clearly abused its discretion; and (2) no other adequate remedy at law is available. Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 586 n. 5 (Tex.Crim.App. 1993) (orig. proceeding). Decisions involving the dismissal or withdrawal of court-appointed counsel are committed to the discretion of the trial court. King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000); Solis v. State, 792 S.W.2d 95, 100 (Tex.Crim.App. 1990). Because the act Hurd seeks to compel is committed to the discretion of the trial court and no clear abuse of discretion has been established, we deny the relief requested.
Hurd's petition also seeks to compel the trial court to consider his motion to dismiss court-appointed counsel. A trial court has a legal, non-discretionary duty to consider and rule on properly filed motions within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex.App.-San Antonio 1998, orig. proceeding). However, before an appellate court may compel the trial court to consider and rule on a pending motion, the relator must establish the filing of the motion, the trial court's awareness of the motion, and the trial court's refusal or failure to act within a reasonable period of time. See In re Fox, 141 S.W.3d 795, 797-98 (Tex.App.-Amarillo 2004, orig. proceeding) (denying mandamus relief when the record did not show the trial court was aware of the pending pleading and refused or failed to rule on it within a reasonable time). Although the mandamus record in this case shows Hurd's motion to dismiss court-appointed counsel was filed on March 16, 2006, nothing in the record demonstrates the motion has been called to the trial court's attention, or that the trial court has refused or failed to act on the motion within a reasonable time. Accordingly, Hurd's petition for a writ of mandamus is denied.