In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-02-00017-CV
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IN RE: STEPHEN CLAY JOHNSTON
Original Mandamus Proceeding
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Grant
O P I N I O N
Stephen Johnston has filed a Petition for Writ of Mandamus with this court asking this court to direct the Sixth Judicial District Court of Lamar County, Texas, to grant his motion for DNA testing pursuant to Tex. Code Crim. Proc. Ann. art. 64.01, et seq. (Vernon Supp. 2002).
Johnston has not provided this court with information to show when he filed the motion, whether he complied with the requirements of the code in seeking the relief, or whether any of the requirements of Chapter 64 were met. He states that the prosecutor had responded to his motion, but there is no indication of the nature of the response, the date on which it was tendered to the court, or the contents of the response.
Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion, or in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (orig. proceeding).
Even though a trial court is required to consider and rule on a motion within a reasonable time, Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265, 266-67 (Tex. Civ. App.-Tyler 1976, orig. proceeding), there is no showing in this case that an unreasonable amount of time has elapsed without a ruling, nor is there any showing of facts from which this court could conclude the trial court abused its discretion in any respect.
Under this state of the record, we cannot conclude that Johnston has shown us he is entitled to a writ of mandamus.
The petition is denied.
Ben Z. Grant
Justice
Date Submitted: February 20, 2002
Date Decided: February 20, 2002
Do Not Publish
Donald R. Ross
Justice
Date Submitted: May 26, 2005
Date Decided: May 27, 2005
Do Not Publish