Opinion
No. 04-05-00823-CV
Delivered and Filed: December 21, 2005.
This proceeding arises out of Cause No. 808369, styled State of Texas v. David G. Sauceda, Jr., pending in County Court at Law No. 5, Bexar County, Texas.
Petition for Writ of Mandamus Denied.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
David G. Sauceda, Jr., seeks a writ of mandamus to compel the trial court to rule on his motion for speedy trial in the underlying cause. A trial court has a legal, nondiscretionary duty to consider and rule on a properly filed motion within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex.App.-San Antonio 1998, orig. proceeding). However, to be entitled to mandamus relief, a relator has the burden of providing a record that establishes 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. Barnes v. State, 832 S.W.2d 424, 426-27 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding).
Michael Kennedy, who is not a licensed attorney, purports to bring this mandamus petition on behalf of Sauceda. An individual party must appear in a legal proceeding either in person or by a licensed attorney. Kunstoplast of America, Inc. v. Formosa Plastics Corp., 937 S.W.2d 455, 456 (Tex. 1996); Tex. R. Civ. P. 7; Tex.R.App.P. 9.1. Thus, Kennedy may not represent Sauceda in this original proceeding.
The mandamus record before us fails to establish that Sauceda's motion was filed and is pending before the trial court. The motion for speedy trial accompanying Sauceda's petition is not file-stamped. The record does not indicate that the clerk received the motion for filing or that Sauceda mailed the motion to the clerk. See Ex parte Bates, 65 S.W.3d 133, 135-36 (Tex.App.-Amarillo 2001, orig. proceeding) (denying a writ of mandamus directing the trial court to rule on motions when the record failed to establish that the motions had been filed). Because Sauceda has not established that a properly filed motion has awaited disposition for an unreasonable time, he has not provided the court with a sufficient record upon which mandamus relief may be granted. Accordingly, the petition for a writ of mandamus is denied.