Opinion
No. 04-05-00377-CV
Delivered and Filed: June 22, 2005.
This proceeding arises out of Cause No. CM-002974, styled The State of Texas v. David Cepeda Jones, pending in the 226th Judicial District Court, Bexar County, Texas. However, relator contends the Honorable Andrew Carruthers, Criminal Law Magistrate, signed the order that is the subject of this proceeding.
Petition for Writ of Mandamus Denied.
Sitting: Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
On June 7, 2005, relator filed an Application for Leave to File a Petition for Writ of Mandamus and a Petition for Writ of Mandamus, asking this court to order the trial court to (1) set aside its order releasing him from custody on a bond; (2) discharge him pursuant to Texas Code of Criminal Procedure articles 32.01 and 32A.02; and (3) grant a change of venue. Also, relator has attached to his petition what appear to be motions directed to this court asking for a speedy trial, and that the prosecution against him be discharged. There is no indication these motions have been filed with the trial court.
A trial court is required to consider and rule upon a motion within a reasonable time. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, 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. Id. However, the trial court has a reasonable time within which to perform this ministerial duty. Id. Accordingly, if a court unnecessarily delays ruling, mandamus will lie in appropriate situations. Here, relator has not provided this court with copies of his motions, a copy of the trial court's docket, or any other proof that he filed these motions and that they are pending before the trial court. It is the relator's burden to provide this court with a record sufficient to establish his right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); Tex.R.App.P. 52.3(j), 52.7(a). Because relator has not met his burden of providing a record establishing that a properly filed motion has awaited disposition for an unreasonable time, he has not provided the court with grounds to usurp the trial court's inherent authority to control its own docket. Therefore, this court has determined that relator is not entitled to the relief sought, and the petition is DENIED. Tex.R.App.P. 52.8(a).
No leave is required to file a petition for writ of mandamus, therefore we DENY the motion for leave to file as moot. Relator's motions for a speedy trial and to dismiss the prosecution and discharge him are DENIED.