in Re Nathan Hunter ( 2012 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-12-00077-CV

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In re Nathan Hunter

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ORIGINAL PROCEEDING FROM TRAVIS COUNTY

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M E M O R A N D U M O P I N I O N

Relator Nathan Hunter, an inmate proceeding pro se, has filed a petition for writ of mandamus complaining of the trial court's alleged failure to rule on his motion for judgment nunc pro tunc. In the motion, Hunter claims that he was denied 40 days of jail-time credit.

Mandamus may issue to compel a trial court to rule on a motion for judgment nunc pro tunc addressing jail-time credit which has been pending before the court for a reasonable period of time. See Ex parte Ybarra, 149 S.W.3d 147, 149 (Tex. Crim. App. 2004); In re Sarkissian, 243 S.W.3d 860, 860-61 (Tex. App.--Waco 2008, orig. proceeding). However, to obtain mandamus relief for the trial court's refusal to rule on such a motion, 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 In re Hearn, 137 S.W.3d 681, 685 (Tex. App.--San Antonio 2004, orig. proceeding). The relator has the burden of providing a record establishing that his motion has awaited disposition for an unreasonable time. In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.--San Antonio 2004, orig. proceeding). Moreover, merely filing a motion with a district or 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.

Additionally, whether a reasonable amount of time has lapsed is dependent on the circumstances of each case; "no bright-line demarcates the boundaries of a reasonable time period." Ex parte Bates, 65 S.W.3d 133, 135 (Tex. App.--Amarillo 2001, orig. proceeding). Courts consider several factors in determining whether the trial court has unnecessarily delayed a ruling, including the trial court's actual knowledge of the motion, its overt refusal to act on it, the state of the court's docket, the court's inherent power to control its docket, and the existence of other judicial and administrative matters which must be addressed. See id.

Although Hunter has provided this Court with a copy of his motion for judgment nunc pro tunc, he has otherwise failed to provide us with any correspondence to the district court requesting a ruling on the motion or any other document demonstrating that the motion was brought to the district court's attention and, if so, that the district court has refused to rule on the motion. Nor has Hunter included anything in the record that would allow us to determine whether a reasonable amount of time has lapsed since the motion was filed. See Tex. R. App. P. 52.7(a) (relator must file with petition "a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding").

The petition for writ of mandamus is denied without prejudice. See Tex. R. App. P. 52.8(a).

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Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Filed: March 1, 2012