Opinion
No. 04-08-00303-CR
Delivered and Filed: May 28, 2008. DO NOT PUBLISH.
Original Mandamus Proceeding Petition for Writ of Mandamus Denied.
This proceeding arises out of Cause No. 2003-CR-5033, styled State of Texas v. Remigio Martinez, filed in the 144th Judicial District Court, Bexar County, Texas, the Honorable Catherine Torres-Stahl presiding.
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
Relator Remigio A. Martinez has filed a petition for a writ of mandamus complaining the trial court has not ruled on his motion for additional jail time credit. A trial court is required to consider and rule upon a motion within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex.App.-San Antonio 1998, 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 court to act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding). Nevertheless, before an appellate court may compel a trial court to consider and rule on a pending motion, the relator must establish the filing of the motion, the trial court's awareness of the motion, and the trial court's refusal or failure to act within a reasonable period of time. See In re Hearn, 137 S.W.3d 681, 685 (Tex.App.-San Antonio 2004, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001, orig. proceeding). An appellate court cannot assume the trial court was aware of a motion and neglected to perform its duty; it is incumbent upon the relator to show the trial court was aware of the existence of the motion and failed or refused to act on the motion within a reasonable period of time. See Hearn, 137 S.W.3d at 685-86; Chavez, 62 S.W.3d at 228. Moreover, merely showing the motion was filed with the district clerk is not sufficient to impute knowledge of the motion to the trial court. Hearn, 137 S.W.3d at 685; Chavez, 62 S.W.3d at 228. Here, Martinez has not filed a copy of his motion for additional jail time credit with this court as required by the Texas Rules of Appellate Procedure. See Tex. R. App. P. 52.7(a) (relator must file with the mandamus petition a copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding). Additionally, Martinez has not provided this court with proof establishing the filing of his motion, the trial court's awareness of his motion, and the trial court's refusal or failure to act within a reasonable period of time. Absent such proof, Martinez has not established a right to mandamus relief. See In re Sarkissian, 243 S.W.3d 860, 861 (Tex.App.-Waco 2008, orig. proceeding) (denying mandamus relief when nothing in the mandamus record established the relator had requested a ruling or otherwise called the motion to the trial court's attention); Chavez, 62 S.W.3d at 228-29 (a showing that the trial court was notified of the motion and failed or refused to act was a prerequisite to mandamus relief). The mandamus petition is therefore denied.