in Re Shane Mix ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00367-CR
IN RE SHANE MIX
Original Proceeding
MEMORANDUM OPINION
Shane Mix, a jail inmate, seeks a mandamus to compel the trial court to rule on
Mix’s application for writ of habeas corpus. There are numerous procedural problems
with the petition, such as no service on the trial court judge as the respondent and the
State as the real-party-in-interest, no certification, no appendix, and no record, as
required by the Rules of Appellate Procedure. See TEX. R. APP. P. 9.5; 52.3(j), (k); 52.7.
However, we use Rule 2 to dispense with these requirements and proceed to a timely
disposition of the petition.
Mix contends he filed an application for writ of habeas corpus under article 11.08
of the Texas Code of Criminal Procedure on October 7, 2019, and the trial court has
ignored him. He has provided no record to support this contention.
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). Mix bears the burden of providing this
Court with a sufficient record to establish his right to mandamus relief. In re Blakeney,
254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).
Assuming Mix filed his application on the date alleged, it has been pending with
the trial court for less than 30 days. While some pleadings necessitate expedited
dispositions, Mix has not explained why the trial court not ruling on his article 11.08
application for writ of habeas corpus is an abuse of discretion under the facts of his case.
In point of fact, Mix has not provided any explanation of what the facts of his application
for writ of habeas corpus are such that an expedited disposition is necessary. Thus, Mix
has not carried his burden to show that the trial court has had a reasonable time within
which to rule on Mix’s application.
Accordingly, Mix’s petition for writ of mandamus is denied without prejudice to
Mix filing a new petition for writ of mandamus if: 1) the trial court does not rule on Mix’s
application for writ of habeas corpus after a reasonable time; 2) Mix has served his new
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mandamus petition on all the parties as required; and 3) Mix has provided a record
showing his entitlement to relief as required.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Petition denied
Opinion delivered and filed October 30, 2019
Do not publish
[OT06]
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