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In re Calloway

Court of Appeals of Texas, Fourth District, San Antonio
Jan 25, 2006
No. 04-05-00912-CV (Tex. App. Jan. 25, 2006)

Opinion

No. 04-05-00912-CV

Delivered and Filed: January 25, 2006.

Original Mandamus Proceeding.

This proceeding arises out of Cause No. 97-03-02648-CV, styled State of Texas v. Michael Edward Calloway, pending in the 365th Judicial District Court, Zavala County, Texas.

Petition for Writ of Mandamus Denied.

Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.


MEMORANDUM OPINION


Relator Michael Edward Calloway has filed a petition for a writ of mandamus complaining of the trial court's alleged failure to rule on a motion for judgment nunc pro tunc in the underlying criminal matter. A trial court is required to consider and rule upon a properly filed motion within a reasonable time. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding). Considering and ruling upon a properly filed and pending motion is a ministerial act, and mandamus may issue to compel the trial judge to act. Id. Various factors are significant in determining whether a motion has been pending for an unreasonable time, including the trial court's actual knowledge of the pending motion, its overt refusal to act on it, the state of the court's docket, and the court's inherent power to control its own docket. Ex parte Bates, 65 S.W.3d 133, 135-36 (Tex.App.-Amarillo 2001, orig. proceeding). Whether the delay in ruling on a motion is unreasonable depends on the circumstances of each case. Id. A relator has the burden of providing this court with a sufficient record to establish a right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); Tex.R.App.P. 52.3(j)(1)(A); 52.7(a).

Calloway has not provided this court with a filestamped copy of his motion or any other documentation showing that his motion has been filed and is pending before the trial court. Even assuming that the motion is pending, Calloway has not established any of the circumstances necessary to determine if his motion has been pending for an unreasonable time. The record does not show that the trial court has actual knowledge of Calloway's motion and has refused to act on it. See Bates, 65 S.W.3d at 136. Nor does it show the overall status of the trial court's docket. See id. at 135-36. Because Calloway has not provided this court with a record upon which mandamus relief may be granted, his petition for a writ of mandamus is denied.


Summaries of

In re Calloway

Court of Appeals of Texas, Fourth District, San Antonio
Jan 25, 2006
No. 04-05-00912-CV (Tex. App. Jan. 25, 2006)
Case details for

In re Calloway

Case Details

Full title:IN RE MICHAEL EDWARD CALLOWAY

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: Jan 25, 2006

Citations

No. 04-05-00912-CV (Tex. App. Jan. 25, 2006)