NO. 07-04-0466-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
OCTOBER 29, 2004
______________________________
IN RE RUBEN NARANJO BALDIVIA, RELATOR
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
By his petition for writ of mandamus, relator Ruben Naranjo Baldivia, an indigent
inmate, requests we compel the Honorable Robert W. Kincaid, Jr., Judge of the 64th
District Court of Castro County, to act on his petition for expunction of criminal records.
Under applicable principles of law, relator’s petition is denied.
Mandamus is an extraordinary remedy available only in limited circumstances
involving manifest and urgent necessity and not for grievances that may be addressed by
other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). To establish his
entitlement to relief, relator must satisfy three requirements:, to-wit: (1) a legal duty to
perform; (2) a demand for performance; and (3) a refusal to act. Stoner v. Massey, 586
S.W.2d 843, 846 (Tex. 1979).
When a motion is properly pending before a trial court, the act of considering and
ruling upon it is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.
1992). However the trial court has a reasonable time within which to perform that
ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San
Antonio 1997, orig. proceeding). Whether a reasonable period of time has lapsed is
dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426,
(Tex.App.–Houston [1st Dist.] 1992, orig. proceeding). Other factors are influential such
as the trial court’s actual knowledge of the motion, its overt refusal to act, the state of its
docket, and other judicial and administrative duties which must be addressed. In re
Villarreal, 96 S.W.3d 708, 711 (Tex.App.–Amarillo 2003, orig. proceeding). Further, the
party requesting relief must provide a sufficient record to establish his entitlement to
mandamus relief. Walker, 827 S.W.2d at 837; see also In re Bates, 65 S.W.3d 133, 135
(Tex.App.–Amarillo 2001, orig. proceeding).
According to his petition, relator was acquitted (offense unspecified) on April 14,
1986, and on August 7, 2000, he filed a document pursuant to article 55.02 of the Texas
Code of Criminal Procedure requesting expunction of his criminal record. Attached to his
petition for mandamus are two exhibits both entitled “Inmate Correspondence Form” dated
April 12, 2002, and July 28, 2004, from the District Clerk indicating the expunction is still
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pending. Relator alleges that following the July 28 notice, on August 6, 2004, he filed a
motion requesting a hearing on his petition for expunction and complains that no action has
been taken. A certified or sworn copy of the motion complained of is not included in an
appendix to relator’s petition as required by Rule 52.3(j)(1)(A) of the Texas Rules of
Appellate Procedure.
Relator has not met his burden to provide a sufficient record demonstrating that a
properly filed document has awaited disposition for an unreasonable length of time. We
decline to hold that the trial court’s inaction on a motion pending almost three months
constitutes an unreasonable delay. Additionally, since the filing of the August 6 motion,
relator has not established he demanded performance nor that the trial court refused to act.
Stoner, 586 S.W.2d at 846.
Accordingly, relator’s petition for writ of mandamus is denied.
Don H. Reavis
Justice
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