Petition for Writ of Mandamus Denied and Memorandum Opinion filed December 11, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-08-01096-CR
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IN RE JOHN WHITSON, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
On December 3, 2008, relator John Whitson filed a petition for writ of mandamus. See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52. Relator asks this court to compel the judge of the 263rd District Court to rule on a motion allegedly filed in that court. We deny relator=s petition.
Relator was convicted in 1986 of burglary of a building and sentenced to 60 years in prison. Whitson v. State, 14-86-052-CR, 1986 WL 10971 (Tex. App.CHouston [14th Dist.] 1986, no pet.). Attached to his petition for writ of mandamus is a document entitled AMotion to Review Record Free Copy of Trial Appeal Record.@ In the motion relator cites the Texas Public Information Act (Tex. Gov=t Code Ann. ' 552.000, et. seq.) and requests the record for the purpose of filing a writ of habeas corpus with the Court of Criminal Appeals. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005). Relator claims he filed the motion with the trial court and the court has refused to rule.
To be entitled to mandamus relief, a relator must demonstrate that the trial court clearly abused its discretion, and that relators has no adequate remedy by appeal. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex.2007). Consideration of a motion properly filed and before a trial court is ministerial. White v. Reiter, 640 S.W.2d 586, 594 (Tex. Crim. App. 1982). A district court may be compelled via mandamus to consider and rule on a pending motion presented to the court. In re Christensen, 39 S.W.3d 250, 251 (Tex. App.CAmarillo 2000, orig. proceeding). The trial court has no discretion to refuse to act, but must consider and rule on the motion within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.CHouston [1st Dist.] 1992, orig. proceeding). However, a trial court cannot be found to have abused its discretion until the complainant establishes that the court (1) had a legal duty to perform a non-discretionary act, (2) was asked to perform the act, and (3) failed or refused to do so. O=Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992).
In this case, the record does not reflect that the motion was filed with the court or that the court refused to rule on the motion. In his petition, relator states that he filed the motion, but does not state when he filed it. The motion attached to the petition is not dated and does not bear a file stamp. Therefore, relator failed to establish that the trial court was asked to perform the ministerial act of ruling on the motion or that the court failed or refused to do so.
Accordingly, we deny the petition for writ of mandamus.
PER CURIAM
Judgment rendered and Memorandum Opinion filed December 11, 2008.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).