in Re: Lloyd Murray ( 2005 )

                                                                                    NO. 12-05-00374-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

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IN RE: LLOYD MURRAY,                                §                 ORIGINAL PROCEEDING

RELATOR 

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MEMORANDUM OPINION

            Relator Lloyd Murray seeks a writ of mandamus requiring the Honorable Pam Foster Fletcher, Judge of the 3rd Judicial District Court, Anderson County, Texas, to respond to his motion to dismiss and his application for writ of habeas corpus or, alternatively, to dismiss the theft by check charge pending against him. We deny the writ.

Discussion

            To obtain mandamus relief in a criminal matter, the relator must establish that (1) the act sought to be compelled is ministerial and (2) there is no adequate remedy at law. Dickens v. Second Court of Appeals, 727 S.W.2d 542, 548 (Tex. Crim. App. 1987). A trial court is required to consider and rule upon a motion within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.–San Antonio 1998, orig. proceeding). When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act. Id. However, the relator must also establish that the trial court was asked to perform the act but failed or refused to do so. O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding). Where the relator makes the requisite showing, we have jurisdiction to direct the trial court to hold a hearing and make a ruling, but we may not order the trial court to make a particular ruling. See id. at 684.

            Here, there is no indication that Respondent was made aware of the motion to dismiss or the application for writ of habeas corpus. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding) (filing the matter with district clerk not sufficient to impute knowledge of pending pleading to trial court). Further, we surmise from the record before us that Respondent has had no longer than two months within which to rule on the motion to dismiss and the habeas application. We cannot say that the failure to rule in two months is unreasonable. Finally, as to Relator’s request that we order Respondent to dismiss the pending charge, we are without jurisdiction to do so. See Ramirez, 994 S.W.2d at 684.

Conclusion

            Relator has failed to establish that he is entitled to mandamus relief. Accordingly, his petition for writ of mandamus is denied.

                                                                                                    DIANE DEVASTO

                                                                                                                 Justice

Opinion delivered December 7, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)