Opinion
NO. 14-18-00044-CR
02-06-2018
IN RE TODD WARREN ALTSCHUL, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS
23rd District Court Brazoria County, Texas
Trial Court Cause No. 23,557
MEMORANDUM OPINION
On January 24, 2018, relator Todd Warren Altschul filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (West Supp. 2017); 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 relator's Motion for Nunc Pro Tunc Judgment, which has a stamp indicating it was received by the clerk on June 26, 2017.
The court grants relator's motion that we treat his petition for writ of mandamus as the filing of a new original proceeding under a new case number.
To be entitled to mandamus relief, a relator must show that (1) he has no adequate remedy at law to redress his alleged harm, and (2) 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).
As the party seeking relief, 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); Tex. R. App. P. 52.7(a)(1) (relator must file with petition "a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding").
"A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act." In re Henry, 525 S.W.3d 381 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding) (per curiam). To be entitled to such relief, "[a] relator must establish that the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed or refused to rule on the motion within a reasonable time. Id. "It is not enough that the motion is on file; the relator must show that the trial court has not ruled on the motion within a reasonable time after a ruling was requested." In re Foster, 503 S.W.3d 606, 607 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (per curiam). The record must show that the motion was brought to the attention of the trial court or judge. See In re Layton, 257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding). The district clerk's receipt of a motion "does not establish that the motion was brought to the attention of the trial court because the clerk's knowledge of the motion is not imputed to the trial court." Id. See also In re Villarreal, 96 S.W.3d 708, 710 n.2 (Tex. App.—Amarillo 2003, orig. proceeding) (relator must provide a record which shows that the judge was aware of and asked to rule on the motion because a judge cannot be faulted for doing nothing when the judge was not aware of the need to act; the clerk's knowledge is not imputed to the judge).
Even after a trial court's plenary power has expired, a trial court has authority and a duty to rule on a properly filed motion for judgment nunc pro tunc motion seeking jail time credit as provided for by Article 42.03 of the Texas Code of Criminal Procedure. See e.g.,Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004).
Relator has provided a record that shows that the Motion for Nunc Pro Tunc Judgment was received by the clerk. But relator has not provided a record that shows that he has brought the Motion for Nunc Pro Tunc Judgment to the attention of the trial judge for a ruling. Relator attempted to obtain a hearing and a ruling on the Motion for Nunc Pro Tunc Judgment by sending a handwritten document to the clerk entitled "Motion for Docketing, Setting, Hearing and Ruling on Motion for Nunc Pro Tunc Judgment", which has a stamp indicating that it was received by the clerk on October 26, 2017. However, relator's filing of this document with the clerk is not sufficient to make the trial judge aware of either this document or the Motion for Nunc Pro Tunc Judgment because the clerk's knowledge of these documents is not imputed to the judge. See In re Layton, 257 S.W.3d at 795; In re Villarreal, 96 S.W.3d at 710 n.2. The mandamus record contains no file-stamped document addressed to the trial judge requesting the judge to rule on the Motion for Nunc Pro Tunc Judgment.
Attached to the petition as Appendix B is copy of the Motion for Nunc Pro Tunc Judgment with a stamp indicating that it was received on June 26, 2017. Relator's petition contains an unsworn declaration that the document attached in Appendix B is a true copy of the motion that he sent to the clerk. The declaration substantially complies with section 132.001 of the Texas Civil Practices and Remedies Code.
"Filing a document with the district clerk does not mean the trial court is aware of it; nor is the clerk's knowledge imputed to the trial court." In re Querishi, No. 14-11-00294-CV, 2011 WL 1365002, at *1 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, orig. proceeding) (per curiam) (mem. op.) (citing In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding)).
Because relator has not provided a record that shows that he has brought the Motion for Nunc Pro Tunc Judgment to the attention of the trial judge for a ruling, we deny the petition for writ of mandamus.
PER CURIAM Panel consists of Justices Christopher, Donovan, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).