Opinion
14-21-00742-CR 14-21-00743-CR
04-21-2022
IN RE PAUL EUGENE DENLEY, Relator
Do Not Publish - Tex.R.App.P. 47.2(b).
ORIGINAL PROCEEDING WRIT OF MANDAMUS 262nd District Court Harris County, Texas Trial Court Cause No. 417904 & Cause No. 0417904-B
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
MEMORANDUM OPINION
PER CURIAM.
On December 20, 2021, relator Paul Eugene Denley filed a petition for writ of mandamus in this Court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this Court to compel the Honorable Lori Chambers Gray, presiding judge of the 262nd District Court of Harris County, to issue an order directing the trial court to grant relator "129 days of presentence and parole revocation warrant jail-time credits."
To be entitled to mandamus relief, the 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 a discretionary act. In re Powell, 516 S.W.3d 488, 494-95 (Tex. Crim. App. 2017) (orig. 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, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding). For relator to be entitled to mandamus relief, the record must show (1) the motion was filed and brought to the attention of the respondent-judge for a ruling, and (2) the respondent-judge has not ruled on the motion within a reasonable time after the motion was submitted to the court for a ruling or after the party requested a ruling. In re Gomez, 602 S.W.3d 71, 73 (Tex. App.-Houston [14th Dist.] 2020, orig. proceeding).
As the party seeking mandamus relief, relator has the burden of providing this court with a sufficient record to establish his right to mandamus relief. Id. at 73-74; Henry, 525 S.W.3d at 382; see also Tex. R. App. P. 52.7(a)(1) (relator must file with the mandamus 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"). To establish that the motion was filed, the relator must provide either a file-stamped copy of the motion or other proof that the motion in fact was filed and is pending before the trial court. Gomez, 602 S.W.3d at 74. Merely filing a motion with a court clerk does not show that the motion was brought to the trial court's attention for a ruling because the clerk's knowledge is not imputed to the trial court. In re Ramos, 598 S.W.3d 472, 473 (Tex. App.-Houston [14th Dist.] 2020, orig. proceeding).
Relator has not provided this court with a mandamus record to demonstrate that a motion for nunc pro tunc is pending in the trial court. Similarly, there is no record that relator has brought a pending motion to the attention of the respondent-judge for a ruling. Mere filing is insufficient because the clerk's knowledge is not imputed to the trial judge. See Ramos, 598 S.W.3d at 473. The respondent-judge is not required to consider a motion that has not been called to the trial court's attention by proper means. See Henry, 525 S.W.3d at 382. Relator has not made the requisite showing.
Moreover, the documents attached to relator's petition reflect that the trial court already has issued at least two nunc pro tunc orders related to jail-time credits. We take judicial notice that relator challenged the trial court orders and that the Court of Criminal Appeals remanded the matter back to the trial court for further development and findings of fact and conclusions of law. See Ex parte Paul Eugene Denley, No. WR-68, 543-03, 2021 WL 3745212, at *1 (Tex. Crim. App. Aug. 25, 2021). Thereafter, the Court of Criminal Appeals denied without written order relator's application for writ of habeas corpus on the findings of the trial court on November 3, 2021.
Accordingly, we deny relator's petition for writ of mandamus against the trial court.