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In re Smith

Court of Appeals Fifth District of Texas at Dallas
Jun 21, 2017
No. 05-17-00365-CV (Tex. App. Jun. 21, 2017)

Opinion

No. 05-17-00365-CV

06-21-2017

IN RE MARVIN J. SMITH, Relator


Original Proceeding from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-94-40593

MEMORANDUM OPINION

Before Justices Lang-Miers, Myers, and Boatright
Opinion by Justice Lang-Miers

Before the Court are relator's April 11, 2017 and April 18, 2017 petitions for writ of mandamus in which he complains that the trial court has failed to rule on his motion for judgment nunc pro tunc, which he filed on May 23, 2016. Relator asks this Court to issue a writ of mandamus directing the trial court to rule on the motion. We requested responses from the real party in interest and respondent. In its response brief, the State of Texas agreed with relator and stated that this Court should conditionally grant the writ and order the trial court to rule. Respondent did not file a response, which was due June 5, 2017. We conditionally grant relief.

Availability of Mandamus Relief

Mandamus relief is appropriate in a criminal case only when a relator establishes (1) that he has no adequate remedy at law to redress his alleged harm, and (2) that what he seeks to compel is a ministerial act, not a discretionary or judicial decision. In re Allen, 462 S.W.3d 47, 49 (Tex. Crim. App. 2015) (orig. proceeding). A trial court has a ministerial duty to rule upon a properly filed and timely presented motion. See State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). To be properly filed and timely presented, a motion must be presented to a trial court at a time when the court has authority to act on the motion. See In re Hogg-Bey, No. 05-15-01421-CV, 2015 WL 9591997, at *1-2 (Tex. App.—Dallas Dec. 30, 2015, orig. proceeding) (mem. op., not designated for publication). A trial court has a ministerial duty to correct a judgment to reflect the appropriate credit for time served. See In re Daisy, 156 S.W.3d 922, 924 (Tex. App.—Dallas 2005, orig. proceeding). If a motion for a nunc pro tunc order for back time credit is filed and the trial judge fails to respond, relief may be sought by petition for writ of mandamus to the court of appeals. Id.

No litigant is entitled to a hearing at whatever time he may choose, however. In re Chavez, 62 S.W.3d 225, 229 (Tex. App.—Amarillo 2001, orig. proceeding). A trial court has a reasonable time within which to consider a motion and to rule. In re Craig, 426 S.W.3d 106, 107 (Tex. App.-Houston [1st Dist.] 2012, orig. proceeding); In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.-Waco 2008, orig. proceeding). The circumstances of the case dictate whether the trial court has ruled within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding).

Analysis

Here, the motion for nunc pro tunc has been on file for over a year, relator provided the trial court with additional information requested by the trial court, and relator has twice asked the court for a ruling on the motion after providing the requested information to the court. The motion was properly filed and timely presented. The trial court, therefore, has a ministerial duty to rule upon the motion within a reasonable time. The trial court has had more than a reasonable time to rule but has failed to do so.

Accordingly, we conditionally grant relator's petitions for writ of mandamus. We order the trial court to make written rulings within fifteen (15) days of the date of this opinion on relator's May 23. 2016 motion for judgment nunc pro tunc. A writ will issue only if the trial court fails to comply with this opinion and the order of this date.

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE 170365F.P05


Summaries of

In re Smith

Court of Appeals Fifth District of Texas at Dallas
Jun 21, 2017
No. 05-17-00365-CV (Tex. App. Jun. 21, 2017)
Case details for

In re Smith

Case Details

Full title:IN RE MARVIN J. SMITH, Relator

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jun 21, 2017

Citations

No. 05-17-00365-CV (Tex. App. Jun. 21, 2017)