IN THE
TENTH COURT OF APPEALS
No. 10-16-00441-CR
IN RE NELSON PARNELL, JR.
Original Proceeding
MEMORANDUM OPINION
Nelson Parnell, Jr., an inmate, seeks a mandamus against the Honorable Kyle
Hawthorne, judge of the 85th District Court, to compel Judge Hawthorne to rule on
Parnell’s “Writ of Habeas Corpus: Amended; Amended Motion,” hereinafter referred to
as “the motion,” filed on November 1, 2016. We requested a response from the State
which was filed on February 16, 2017.1 We deny Parnell’s petition.
1
The State responded that Parnell is not entitled to relief on his motion. That is not the question in this
mandamus proceeding. The question before us is whether the trial court has a ministerial duty to rule on
the motion and failed to rule on the motion within a reasonable time. Because the merits of the relief
requested from the trial court are not before us, all the briefing filed by the State on those merits does not
help us in the disposition of this proceeding. It may, however, be helpful to the trial court in ruling on the
pending motion(s).
The need to consider and rule on a properly filed and presented request for relief
is not a discretionary act but a ministerial one, and a trial court is allowed a reasonable
time within which to perform that act. In re Chavez, 62 S.W.3d 225, 228-229 (Tex. App.—
Amarillo 2001, orig. proceeding). The duty to act, however, generally does not arise until
the movant has brought the request for relief to the trial judge's attention; and mandamus
will not lie unless the movant makes such a showing, and the trial judge then fails or
refuses to rule within a reasonable time. See id. at 228. Whether a reasonable time has
lapsed is dependent upon the circumstances of each case. Ex parte Bates, 65 S.W.3d 133,
135 (Tex. App.—Amarillo 2001, orig. proceeding). Also, the mere filing of a pleading or
letter with the clerk does not impute knowledge of the request for relief to the trial judge.
In re Samuelson, No. 10-11-00460-CR, 2012 Tex. App. LEXIS 90, *4 (Tex. App.—Waco Jan.
4, 2012, orig. proceeding) (not designated for publication).
Parnell bears the burden of providing this Court with a sufficient record to
establish his right to mandamus relief. In re Wilkerson, No. 10-15-00226-CR, 2015 Tex.
App. LEXIS 6808, at *2 (App.—Waco July 2, 2015, orig. proceeding) (not designated for
publication). A proper record might contain documentary evidence like letters, if any,
through which Parnell attempted to obtain a ruling, responses, if any by the clerk or trial
court, and any other matter which might suggest that two months is an unreasonable
amount of time for the motion to be pending. Parnell has provided us with only a copy
the motion which is file stamped November 1, 2016 and a copy of Parnell’s letter to the
In re Parnell Page 2
clerk, also file stamped November 1, 2016, requesting the clerk to bring the request for
relief to the attention of the trial court and requesting a hearing. As we have noted, the
letter does not impute knowledge of the motion to the trial court.
Based on the record before us, it does not appear that the motion, which had been
pending for less than two months at the time the petition for writ of mandamus was filed,
had been brought to the trial court's attention and that the trial court failed or refused to
rule on the motion.
Accordingly, Parnell’s petition for writ of mandamus is denied.
Further, Parnell’s Subsequent Motion for Order of Entitled Relief, filed on
February 21, 2017, is denied.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition denied
Motion denied
Opinion delivered and filed March 15, 2017
Do not publish
[OT06]
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