TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00094-CV
In re Michael McGoldrick
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
MEMORANDUM OPINION
Relator Michael McGoldrick, an inmate, has filed a pro se petition for writ of
mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221 (West 2004). In the petition,
McGoldrick seeks a writ requiring the trial court to rule on his motion for a copy of the clerk’s
record and reporter’s record from his trial. McGoldrick contends that the record is necessary so that
he may prepare his post-conviction petition for writ of habeas corpus.1 For the following reasons,
we deny McGoldrick’s petition for writ of mandamus.
As an initial matter, we address our jurisdiction to consider McGoldrick’s mandamus
petition. Generally, an intermediate court of appeals has no jurisdiction over post-conviction
applications for writ of habeas corpus in felony cases. See Tex. Code Crim. Proc. Ann. art. 11.07
(West Supp. 2012); see also Ex parte Martinez, 175 S.W.3d 510, 512–13 (Tex. App.—Texarkana
2005, orig. proceeding); Self v. State, 122 S.W.3d 294, 294–95 (Tex. App.—Eastland 2003, no pet.).
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McGoldrick appealed the conviction from which he now seeks the clerk’s record and
reporter’s record. McGoldrick’s attorney was provided access to the appellate record, which he used
to prepare the appellate brief. This court affirmed McGoldrick’s conviction. See McGoldrick v.
State, No. 03-07-00132-CR, 2007 WL 2462035 (Tex. App.—Austin Aug. 29, 2007, no pet.).
Similarly, an intermediate appellate court has no authority to compel a trial court to rule on matters
related to a petition for writ of habeas corpus. See In re McAfee, 53 S.W.3d 715, 717–18 (Tex.
App.—Houston [1st Dist.] 2001, orig. proceeding) (concluding intermediate appellate court could
not order trial court to rule on habeas petition); see also In re Fierro, No. 03-12-00018-CV, 2012
WL 414020, at *1 (Tex. App.—Austin Feb. 9, 2012, orig. proceeding) (mem. op., not designated for
publication) (“[C]omplaints regarding the trial court’s failure to address a recusal motion filed in
connection with . . . [a] habeas proceeding should be addressed to the Court of Criminal Appeals.”).
However, the court of criminal appeals has recently held that its “exclusive Article 11.07 jurisdiction
[does not] divest[] an appellate court of jurisdiction to decide the merits of a mandamus petition
alleging that a district court is not ruling on a motion when the relator has no Article 11.07
application pending.” Padieu v. Court of Appeals of Tex., Fifth Dist., No. AP-76,727, 2013 WL
85372, at *2 (Tex. Crim. App. Jan. 9, 2013) (orig. proceeding). McGoldrick’s mandamus petition
indicates that he has not yet filed a petition for writ of habeas corpus. Therefore, we have jurisdiction
to hear his mandamus petition. See id. We next turn to the merits of McGoldrick’s claim.
To demonstrate entitlement to a writ of mandamus in a criminal case, a relator must
establish that (1) a ministerial act, not a discretionary or judicial decision, is being sought, and that
(2) there is no other adequate legal remedy at law to redress the alleged harm. State ex. rel. Young
v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007,
orig. proceeding). A trial court has a ministerial duty to consider and rule, within a reasonable time,
on motions properly filed and pending before the court. See In re Layton, 257 S.W.3d 794, 795
(Tex. App.—Amarillo 2008, orig. proceeding). However, a court is not required to consider a
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motion not called to its attention. Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.—Houston
[1st Dist.] 1994, writ denied).
According to the document attached to McGoldrick’s petition, he twice filed motions
for leave to obtain copies of the records and he “respectfully requests that said judge answer said
motion.” McGoldrick filed the first motion on or about March 25, 2011, and he filed the second
motion on June 8, 2011. Admittedly, the trial court has had a reasonable amount of time to rule on
the motions, which is a ministerial act subject to mandamus relief. See State ex. rel. Hill v. Court
of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).
However, filing a motion with the district clerk does not establish that the motion
was brought to the attention of the trial court because the clerk’s knowledge of the motion is not
imputed to the trial court. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.
proceeding). Because McGoldrick’s petition fails to demonstrate that his motion has actually been
brought to the trial court’s attention or presented for a ruling, we cannot hold under this record that
the trial court failed to perform a non-discretionary act. Therefore, we deny McGoldrick’s petition
for writ of mandamus without prejudice. See Tex. R. App. P. 52.8.
The petition for writ of mandamus is denied.
__________________________________________
Scott K. Field, Justice
Before Chief Justice Jones, Justices Goodwin and Field
Filed: January 29, 2013
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