in Re Leonard Childs ( 2009 )

i i i i i i
MEMORANDUM OPINION
No. 04-09-00678-CR
IN RE Leonard CHILDS
Original Mandamus Proceeding1
PER CURIAM
Sitting: Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: November 4, 2009
PETITION FOR WRIT OF MANDAMUS DENIED
On October 21, 2009, relator Leonard Childs filed an Application for Leave to File Petition
for Writ of Mandamus and a Petition for Writ of Mandamus, seeking to compel the trial court to rule
on his pro se motion to dismiss his attorney.
To obtain a writ of mandamus compelling the trial court to consider and rule on a motion,
a relator must establish that the trial court: (1) had a legal duty to perform a non-discretionary act;
(2) was asked to perform the act; and (3) failed or refused to do so. In re Molina, 94 S.W.3d 885,
886 (Tex. App.—San Antonio 2003, orig. proceeding). When a properly filed motion is pending
before a trial court, the act of giving consideration to and ruling upon that motion is ministerial, and
1
… This proceeding arises out of Cause No. 2009-CR-2718A, styled State of Texas v. Leonard Childs, in the
186th Judicial District Court, Bexar County, Texas, the Honorable Maria Teresa Herr presiding.
04-09-00678-CR
mandamus may issue to compel the trial judge to act. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d
268, 269 (Tex. App.—San Antonio 1997, orig. proceeding). However, mandamus will not issue
unless the record shows that a properly filed motion has awaited disposition for an unreasonable
amount of time. See id. It is relator’s burden to provide this court with a record sufficient to
establish his right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); TEX . R. APP . P.
52.3(k), 52.7(a).
The record before us fails to establish relator is entitled to the relief requested. Although
relator alleges he filed his motion on October 12, 2009, relator has not provided this court with a file
stamped copy of the motion, a copy of the trial court’s docket, or any other proof that he filed the
motion and that it is pending before the trial court. Even if relator’s motion was properly filed, the
record does not show that relator’s motion has awaited disposition for an unreasonable amount of
time. See Safety-Kleen, 945 S.W.2d at 269 (trial court has reasonable time within which to perform
its ministerial duty).
Accordingly, because relator has not met his burden of providing a record establishing that
a motion was properly filed and has awaited disposition for an unreasonable amount of time, he has
not provided this court with grounds to usurp the trial court’s inherent authority to control its own
docket. See In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.—San Antonio 2004, orig. proceeding).
Accordingly, relator’s petition for writ of mandamus is denied. TEX . R. APP . P. 52.8(a). No leave
is required to file a petition for writ of mandamus, therefore we deny the motion for leave to file as
moot.
PER CURIAM
DO NOT PUBLISH
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