Opinion
NO. 14-15-01091-CRNO. 14-15-01092-CRNO. 14-15-01093-CR
01-12-2016
IN RE MICHAEL DAVIS, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS 228th District Court Harris County, Texas
Trial Court Cause Nos. 331288, 331289 & 331549
MEMORANDUM OPINION
On December 28, 2015, relator Michael Davis filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Marc Carter, presiding judge of the 228th District Court of Harris County, to rule on his "Applicant's Motion for Access to the Plea Bargain."
A trial court is required to consider and rule upon a motion within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992) (orig. proceeding); In re Querishi, 14-15-00232-CV, 2015 WL 1456150, at *1 (Tex. App.—Houston [14th Dist.] Mar. 26, 2015, 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." Barnes, 832 S.W.2d at 426; see also Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (trial court abused its discretion by refusing to conduct hearing and render decision on motion).
Attached to relator's petition as exhibits are: (1) a copy of the Motion for Access with a stamp indicating that it was filed with the district clerk on December 1, 2015, (2) a copy of the Motion for Access with a stamp indicating that it was received by the district clerk on December 7, 2015 (with notation "filed with trial judge"), and (3) a copy of a letter dated December 10, 2015 from relator to the trial judge that requests the trial judge to rule on his "Movant's Motion for Access to the Plea Bargain." Thus, it appears that the trial judge has had roughly one month to rule on the Motion for Access since relator mailed his letter dated December 10, 2015.
None of the exhibits are certified or sworn to as true copies filed with the district clerk as required by Texas Rule of Appellate Procedure 52.7(a)(1). As the party seeking relief, the 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). --------
No litigant is entitled to a hearing at whatever time he may choose. In re Chavez, 62 S.W.3d 225, 228-29 (Tex. App.—Amarillo 2001, orig. proceeding). A trial court has a reasonable time within which to consider a motion and to rule. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). There is no bright-line standard for determining whether a reasonable time to rule has elapsed. In re Bates, 65 S.W.3d 133, 133 (Tex. App.—Amarillo 2001, orig. proceeding). The trial court's inherent power to control its own docket must be given due consideration. In re Chavez, 62 S.W.3d at 228. A reviewing appellate court may only order the trial court to rule if the circumstances show that the trial court's failure to act is an abuse of its discretion. In re Bates, 65 S.W.3d at 135. See In re Holleman, 2004 WL 624584, at *1 (Tex. App.-San Antonio Mar. 31, 2004, orig. proceeding) (mem. op.) (one-month delay in ruling on motion was not an abuse of discretion).
Relator has not shown that a reasonable time for the trial judge to rule on the Motion for Access has elapsed and that the trial judge abused his discretion by failing to rule. Accordingly, we deny relator's petition for writ of mandamus.
PER CURIAM Panel consists Justices Christopher, McCally and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).