in Re David Rosario ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00027-CR
IN RE DAVID ROSARIO
Original Proceeding
MEMORANDUM OPINION
In this original proceeding, Relator David Rosario seeks mandamus relief in the
form of compelling the Respondent trial court judge to rule on Rosario’s motion for
speedy trial.1
“A court with mandamus authority ‘will grant mandamus relief if relator can
demonstrate that the act sought to be compelled is purely ‘ministerial’ and that relator
has no other adequate legal remedy.’” In re Piper, 105 S.W.3d 107, 109 (Tex. App.—
1Rosario’s petition for writ of mandamus has several procedural deficiencies. See TEX. R. APP. P. 52.3. It
does not include the certification required by Rule of Appellate Procedure 52.3(j). See TEX. R. APP. P.
52.3(j). The petition lacks proof of service on the Respondent trial judge and on the Coryell County
District Attorney, a Real-Party-in-Interest. See id. 9.5, 52.2. A copy of all documents presented to the
Court must be served on all parties to the proceeding and must contain proof of service. Id. 9.5. Because
of our disposition and to expedite it, we will implement Rule 2 and suspend these rules. Id. 2.
Waco 2003, orig. proceeding) (quoting State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 197-99
(Tex. Crim. App. 2003) (orig. proceeding)). Consideration of a motion properly filed
and before the court is ministerial. State ex rel. Hill v. Ct. of Apps. for the 5th Dist., 34
S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).
Mandamus may issue to compel a trial court to rule on a motion
which has been pending before the court for a reasonable period of time.
See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig.
proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex. App.—Waco 2003,
orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo
2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—
Houston [1st Dist.] 1992, orig. proceeding); see also In re Shredder Co., 225
S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). To obtain
mandamus relief for such refusal, a relator must establish: (1) the motion
was properly filed and has been pending for a reasonable time; (2) the
relator requested a ruling on the motion; and (3) the trial court refused to
rule. See Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at 252; Chavez, 62
S.W.3d at 228; Barnes, 832 S.W.2d at 426; see also Shredder Co., 225 S.W.3d at
679. The mere filing of a motion with a trial court clerk does not equate to a
request that the trial court rule on the motion. See Hearn, 137 S.W.3d at 685;
Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. Shredder Co., 225
S.W.3d at 680 (“Relator has made repeated requests for a ruling on its
motion.”).
In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding)
(emphasis added).
A trial judge has a reasonable time to perform the ministerial duty of considering
and ruling on a motion properly filed and before the judge. Chavez, 62 S.W.3d at 228.
But that duty generally does not arise until the movant has brought the motion to the
trial judge’s attention, and mandamus will not lie unless the movant makes such a showing
and the trial judge then fails or refuses to rule within a reasonable time. See id. Also,
the mere filing of a pleading or letter with the clerk does not impute knowledge to the
In re Rosario Page 2
trial judge. See In re Flores, No. 04-03-00449-CV, 2003 WL 21480964 (Tex. App.—San
Antonio June 25, 2003, orig. proceeding).
Rosario bears the burden of providing this Court with a sufficient record to
establish his right to mandamus relief. See In re Mullins, 10-09-00143-CV, 2009 WL
2959716, at *1, n.1 (Tex. App.—Waco Sept. 16, 2009, orig. proceeding) (mem. op.); In re
Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). There is
no record showing that Rosario has brought the matter to the attention of the trial judge
and that the trial judge has then failed or refused to rule within a reasonable time.
We deny the petition for writ of mandamus.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition denied
Opinion delivered and filed February 6, 2014
Do not publish
[OT06]
In re Rosario Page 3