Opinion
No. 05-20-00195-CV
10-15-2020
IN RE MUAMAR ASAD SAYYED, Relator
Original Proceeding from the 219th Judicial District Court Collin County, Texas
Trial Court Cause No. 380-82405-07
MEMORANDUM OPINION ON REHEARING
Before Chief Justice Burns and Justices Osborne and Reichek
Opinion by Chief Justice Burns
The Honorable David L. Bridges, Justice, participated in the original decision in this case; however, he did not participate in the issuance of this memorandum opinion on rehearing due to his death on July 25, 2020. Chief Justice Robert Burns has substituted for Justice Bridges and has reviewed the motion for rehearing, petition, and response in this cause.
Muamar Asad Sayyed has filed a motion for rehearing of our April 3, 2020 memorandum opinion and order denying relief. We deny the motion for rehearing, withdraw our opinion and order of April 3, 2020, and issue this new memorandum opinion and order denying relief in their stead.
Relator's petition for writ of mandamus requests mandamus relief to compel the trial court to rule on his motion for judgment nunc pro tunc requesting a correction of his time credits. On original submission, the Court denied relief because relator failed to provide certified or sworn copies of documents necessary to consider his petition. See In re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding).
Relator has moved for rehearing and he has attached an affidavit rendering his documents sworn copies. See TEX. GOV'T CODE ANN. § 132.001; Butler, 270 S.W.3d at 759; In re Taylor, 28 S.W.3d 240, 245, (Tex. App.—Waco 2000, orig. proceeding) (mem. op.), disapproved on other grounds by In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). Because relator's affidavit removes the technical grounds upon which the Court's memorandum opinion rested, the Court requested a response to the motion for rehearing. The State filed a response that addressed the underlying merits of relator's petition for mandamus relief. We now consider the merits of relator's petition.
To establish a right to mandamus relief, relator must show the trial court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). To show he is entitled to mandamus relief compelling the trial court to rule on a motion, relator must show (1) the trial court had a legal duty to rule on the motion because it was properly filed and timely presented, (2) relator requested a ruling on the motion, and (3) the trial court failed or refused to rule on the motion within a reasonable period of time. See In re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig. proceeding) (mem. op.); In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding) (per curiam); see also In re Carter, No. 05-18-00296-CV, 2018 WL 1417409, at *1 (Tex. App.—Dallas Mar. 22, 2018, orig. proceeding) (mem. op.).
In his petition, relator contends the trial court has failed to rule upon his motion for judgment nunc pro tunc, filed on January 16, 2019, seeking an additional 230 days of time credits on his sentence. Relator identifies two blocks of time for review: a pretrial period from his arrest on May 5, 2007 until August 9, 2007 and then again during a post-conviction period from February 6, 2012 to June 21, 2012 when he was paroled and transferred to the custody of United States Immigration and Customs Enforcement. Relator asserts he requested the trial court rule on his motion on June 3, 2019 and again on November 19, 2019. Appellant further shows he filed a request for time credit with prison officials who responded with an explanation that they could not change his release date "without corrected judgment from the county."
In its response, the State contends relator has not shown the trial court has a ministerial duty to rule upon his motion. The State first contends the trial court's docket shows relator filed his motion, but failed to request a setting through the bailiff. The State asserts there is no evidence the respondent trial court judge was aware of relator's motion at all until the Court requested a response to relator's motion.
We agree with the State. The docket sheet shows relator has filed an ongoing stream of post-conviction writ applications and motions. As the State contends, the trial court's docket sheet does not show any request for a setting or that the trial court was aware of the motion and failed to consider it. To the contrary, the docket sheet shows the trial court has been attentive to relator's filings during the time period at issue, including filing findings of fact and conclusions of law on an article 11.07 writ application and issuing an order on an article 11.08 writ application.
The State points out that relator's June 3, 2019 first request seeking a ruling on his motion is included as a second paragraph in a cover letter enclosing relator's 11.07 writ application. Because the request for a ruling was made at the end of a cover letter for a document requesting other relief, it would have been easy to overlook relator's request. The request appears to have been filed by the district clerk on June 6, 2019 as "Inmate Correspondence." Regarding relator's assertion that he made a second request on November 19, 2019, the trial court's docket sheet contains a November 26, 2019 entry labeled "Inmate Correspondence," but it does not show any action on this document other than filing it.
"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." Ramos v. State, 598 S.W.3d 472, 473 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). Because relator has not shown that he properly presented the motion to the trial court or that the trial court was aware of his motion and failed to act upon it, we cannot conclude relator has shown the respondent failed to perform a ministerial duty. See Prado, 522 S.W.3d at 2; Ramos, 598 S.W.3d at 473.
The State next contends the trial court has already ruled upon and denied relator's request for the 2007 time credit he now seeks. In 2008, relator filed a motion for judgment nunc pro tunc requesting a time credit for period between May 5, 2007 and August 9, 2007. In response, the bailiff of the convicting trial court filed an affidavit averring that she was asked to review the files regarding relator's time credit. The bailiff averred that relator's time credit begins on August 9, 2007 because that is the date the Dallas County Sheriff's office informed the Collin County Sheriff's office that relator was in the Dallas County Jail and Collin County put a hold on relator with Dallas County. Relator was transferred from the Dallas County to Collin County on August 28, 2007.
By order entered August 5, 2010, the trial court denied relator's motion for judgment nunc pro tunc, expressly finding "the jail time entered in the judgment is accurate. . . ." On August 17, 2010, Regional Administrative Judge John Ovard, sitting for the trial court judge, entered a second order denying relator's motion for judgment nunc pro tunc regarding a time credit for May 5, 2007 to August 9, 2007. In his order, Judge Ovard recited that the trial court had "determined that [relator] was arrested and held in the Dallas County Jail between May 5, 2007 and August 9, 2007 on an unrelated charge." Judge Ovard further determined that relator's request for additional time credits lacked merit because Collin County had issued a warrant for relator on August 9, 2007, and relator was given time credit in the judgment for the period Collin County had held him since August 9, 2007.
The record does not show why there are two orders.
We agree with the State that the record shows the trial court has already ruled upon and denied relator's request for a time credit for the period between May 5, 2007 and August 9, 2007. Because the trial court has already considered and rejected relator's contentions, relator is not entitled to mandamus relief regarding the pretrial time credit. See In re Birdwell, 393 S.W.3d 886, 893 (Tex. App.—Waco 2012, orig. proceeding); see also In re Sims, No. 05-13-00049-CV, 2013 WL 1273912, at *1 (Tex. App.—Dallas Mar. 15, 2013, orig. proceeding) (mem. op.) ("Relator is not entitled to a writ of mandamus compelling the trial court to repeatedly rule on the same motion.").
As a final argument, citing an unpublished decision from the court of criminal appeals, the State contends relator's request for a time credit for the period between February 6, 2012 and June 21, 2012I when he was in federal custody lacks merit. As a general rule, the Court exercises its mandamus authority to compel the trial court to rule upon a motion for judgment nunc pro tunc without considering the merits of the motion. Ramos, 598 S.W.3d at 474. Thus, we decline to consider whether relator is entitled to relief on the merits of his motion. Id.
Accordingly, we agree with the State that relator has not shown that he properly presented the motion for judgment nunc pro tunc to the trial court obligating the trial court to rule upon the motion. We further agree with the State that the issue of relator's pretrial time credits has already been decided adversely to him and is not subject to mandamus.
The State concedes that the respondent learned of the motion for judgment nunc pro tunc when the Court requested a response to the petition for writ of mandamus on July 1, 2020. Because relator has not shown the respondent has had a reasonable opportunity to consider and rule upon his motion requesting a time credit for the period between February 6, 2012 and June 21, 2012, we deny relator's petition for writ of mandamus without prejudice to relator filing a new mandamus proceeding should the trial court not act upon his motion within a reasonable time.
We deny the petition for writ of mandamus.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE 200195F.P05