in Re Jason Ray Brannon A.K.A Michael Earl Short ( 2013 )

Petition for Writ of Mandamus Dismissed in Part and Denied in Part and
Memorandum Opinion filed April 16, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00297-CV
NO. 14-13-00298-CV
IN RE JASON RAY BRANNON A.K.A MICHAEL EARL SHORT, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
129th & 157th District Court
Harris County, Texas
Trial Court Cause Nos. 2011-21469 & 2011-31498
MEMORANDUM OPINION
On April 4, 2013, relator Jason Ray Brannon a.k.a Michael Earl Short filed a
petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. §22.221;
see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the
Honorable Michael Gomez, presiding judge of the 129th District Court of Harris
County to rule on his motion for expunction of records. Relator also asks this
court to compel Chris Daniel, the Harris County District Clerk and Mike
Anderson, the Harris County District Attorney to provide “access to the courts for
an expunction of arrest records.” We deny the petition as to Judge Gomez and
dismiss for want of jurisdiction as to the Harris County District Clerk and the
Harris County District Attorney.
According to his petition, relator filed a motion to expunge arrest records on
January 26, 2010, then re-filed two motions to expunge records on January 7,
2011. On October 31, 2011, according to relator, Judge Gomez granted the
expunction in trial court cause number 2011-21469, but on November 30, 2011, an
assistant district attorney with the Harris County District Attorney’s office objected
to the expunction. Relator complains that the District Attorney’s office and the
District Clerk have prevented him from expunging arrest records. Relator did not
attach copies of the motions to expunge records, the assistant district attorney’s
objections, or the trial court’s earlier grant of his motions.
When a properly filed motion is pending before the trial court, the act of
giving consideration to and ruling on that motion is a ministerial act, and
mandamus may issue to compel the trial court to act. In re Butler, No. 14-11-
00760-CV; 2011 WL 4564003 (Tex. App.—Houston [14th Dist.] Oct. 4, 2011,
orig. proceeding) (mem. op.); Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269
(Tex. App.—San Antonio 1997, orig. proceeding). To establish that the trial court
abused its discretion by failing to rule, the relator must show that the trial court: (1)
had a legal duty to perform a nondiscretionary act; (2) was asked to perform that
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act; and (3) failed or refused to do so. In re Shredder Co., L.L.C., 225 S.W.3d 676,
679 (Tex. App.—El Paso 2006, orig. proceeding). Specifically, a relator must
show that the trial court received the motion, was aware of it, and was asked to rule
on the motion. In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003,
orig. proceeding).
Relator has not provided this court with a record showing that the trial judge
received the motion, was aware of it, was asked to rule on it, and refused to rule.
Filing a document with the district clerk does not mean the trial court is aware of
it; nor is the clerk’s knowledge imputed to the trial court. In re Hearn, 137 S.W.3d
681, 685 (Tex. App.—San Antonio 2004, orig. proceeding); Villarreal, 96 S.W.3d
at 710 n. 2. Therefore, no abuse of discretion is shown. See In re Chavez, 62
S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding).
Relator has not established entitlement to the extraordinary relief of writ of
mandamus. Accordingly, we deny relator’s petition for writ of mandamus directed
toward the district court.
Relator also requests relief against the Harris County District Clerk’s office
and the Harris County District Attorney. This court’s mandamus jurisdiction is
governed by section 22.221 of the Texas Government Code. Section 22.221
expressly limits the mandamus jurisdiction of the courts of appeals to: (1) writs
against a district court judge or county court judge in the court of appeals’ district,
and (2) all writs necessary to enforce the court of appeals’ jurisdiction. Tex. Gov’t
Code Ann. § 22.221. Relator directs his request for relief toward the Harris
County District Clerk and the Harris County District Attorney who are not subject
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to this court’s mandamus jurisdiction. Because the relief requested by relator is
not necessary to enforce this court’s jurisdiction, we have no jurisdiction to compel
the District Clerk and the District Attorney to act. See Tex. Gov’t Code Ann. §
22.221(b)(1).
Accordingly, we dismiss the petition for writ of mandamus directed toward
the Harris County District Clerk and the Harris County District Attorney.
PER CURIAM
Panel consists of Justices Brown, Christopher, and McCally.
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