in Re Jason Dale Whitlock ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00565-CV
In re Jason Dale Whitlock
ORIGINAL PROCEEDING FROM TOM GREEN COUNTY
MEMORANDUM OPINION
Relator Jason Dale Whitlock, an inmate appearing pro se, has filed a petition for
writ of mandamus. In the petition, Whitlock asks this Court to order the 391st District Court of
Tom Green County to rule on Whitlock’s “motion to compel for speedy chapter 59 hearing.”1
Mandamus is an extraordinary remedy that issues only to correct a clear abuse
of discretion when there is no adequate remedy by appeal.2 When a motion is properly filed and
pending before the trial court, the act of considering and ruling on that motion is a ministerial act,
and mandamus may issue to compel the trial court to act.3 However, the relator has the burden to
provide the reviewing court with a record sufficient to establish his right to mandamus relief.4 To
1
This is apparently a reference to Chapter 59 of the Texas Code of Criminal Procedure,
relating to the forfeiture of contraband. See Tex. Code Crim. Proc. art. 59.01 et seq. In the motion,
Whitlock is demanding a hearing in response to what he characterizes as “the State’s attempt to
illegally take and keep his money in the amount of $1,965.00.”
2
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004).
3
In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding).
4
Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Mendoza,
131 S.W.3d 167, 168 (Tex. App.—San Antonio 2004, orig. proceeding); see Tex. R. App.
P. 52.7(a)(1).
obtain mandamus relief compelling a trial court to rule on a properly filed motion, a relator must
provide a record demonstrating that the trial court: (1) had a legal duty to rule on the motion; (2) was
asked to rule on the motion; and (3) either refused or failed to rule on the motion within a reasonable
time.5 Whitlock has failed to provide such a record here.6 Accordingly, the petition for writ of
mandamus is denied.7
____________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton, and Field
Filed: October 28, 2014
5
In re Layton, 257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding); In re
Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding).
6
See Blakeney, 254 S.W.3d at 662; In re Davidson, 153 S.W.3d 490, 491 (Tex.
App.—Amarillo 2004, orig. proceeding); Chavez, 62 S.W.3d at 228.
7
See Tex. R. App. P. 52.8(a). Whitlock has also filed a motion for leave to file his petition
for writ of mandamus. No such leave is required. We dismiss that motion as moot.
2