in Re: Gary Eugene Sims ( 2015 )

DISMISS and DENY; and Opinion Filed June 23, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00745-CV
IN RE GARY EUGENE SIMS, Relator
Original Proceeding from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-0045450-S
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Whitehill
Opinion by Justice Lang-Miers
Relator filed this petition for writ of mandamus asserting two complaints. First, he
contends the district clerk has not returned file marked copies of his motion to vacate the
indictment, motion to compel and his request for settings of the motions. Second, he contends
that the trial court has not ruled on his motion to dismiss the indictment, which he states was
filed on April 29, 2015.
The Court's power to issue a writ of mandamus is set forth in section 22.221 of the Texas
Government Code. Because the Dallas County District Clerk is not a judge, the district clerk falls
within our mandamus jurisdiction only to the extent necessary to enforce our jurisdiction. See
TEX. GOV'T CODE ANN. § 22.221(a), (b) (West 2004) (writ power). None of the allegations in
the petition suggest that the district clerk’s failure to return a copy of relator’s motions and
request for setting threatens this Court’s jurisdiction in any manner. 1 Accordingly, we lack
jurisdiction over the petition to the extent it seeks relief against the district clerk.
With respect to relator’s complaint that the trial court has failed to rule on his motion,
nothing in the mandamus record suggests the trial court has violated a ministerial duty in failing
to rule on relator’s motion. No litigant is entitled to a hearing at whatever time he may choose.
In re Chavez, 62 S.W.3d 225, 229 (Tex. App.–Amarillo 2001, orig. proceeding). A trial court
has a reasonable time within which to consider a motion and to rule. Barnes v. State, 832
S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig. proceeding). On this record we
cannot conclude the trial court has failed to rule within a reasonable time.
We DISMISS the petition to the extent it seeks relief against the district clerk and DENY
the petition to the extent it seeks relief against the trial court.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
150745F.P05
1
Relator was convicted of aggravated sexual assault of a child and sentenced to life imprisonment. His conviction was affirmed on direct
appeal. Sims v. State, No. 08–01–00121–CR, 2002 WL 1482389 (Tex. App.–El Paso July 11, 2002, pet. ref'd) (not designated for publication).
The appeal was transferred from this Court to the Eighth District Court of Appeals at El Paso pursuant to a Texas Supreme Court docket
equalization order.
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