in Re: James William Davis ( 2010 )

NO. 12-10-00033-CR
NO. 12-10-00034-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
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IN RE: JAMES WILLIAM DAVIS,
RELATOR ' ORIGINAL PROCEEDING
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MEMORANDUM OPINION
In this original proceeding, James William Davis alleges that charges for escape
and aggravated assault have been pending against him for over five years. He further
alleges that he has made repeated requests for the cases to be tried or dismissed, but has
been unsuccessful. Additionally, he has filed two motions in the trial court requesting
that the cases be tried or dismissed in light of his Sixth Amendment right to a speedy
trial. He contends that the trial court has not ruled on his motions and seeks a writ of
mandamus ordering that all pending allegations be dismissed with prejudice.1
District Attorney
A court of appeals has the authority to issue writs of mandamus against a judge of
a district or county in the court of appeals district and all writs necessary to enforce its
jurisdiction. TEX. GOV'T CODE ANN. § 22.221 (Vernon 2004). In order for a district
attorney to fall within our jurisdictional reach, it must be established that the issuance of
the writ is necessary to enforce our jurisdiction. See id.; In re Spivey, No. 10-09-00263-
CV, 2009 WL 2643985, at *1 (Tex. App.–Aug. 26, 2009, orig. proceeding [mandamus
denied]) (mem. op.) (holding that appellate court lacked jurisdiction to issue mandamus
against district attorney when not necessary to enforce its jurisdiction). Relator has not
demonstrated that the exercise of our mandamus authority against the Rains County
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The respondents are Robert Vititow, District Attorney, Rains County, Texas, and the Honorable
Robert Newsom, Judge of the 8th Judicial District Court of Rains County.
District Attorney is necessary to enforce our jurisdiction. Consequently, we have no
authority to issue the requested writ.
Trial Court
In a criminal case, the relator is entitled to mandamus relief only if he establishes
that (1) he has no other adequate legal remedy and (2) under the facts and the law, the act
sought to be compelled is purely ministerial. See State ex rel. Hill v. Fifth Court of
Appeals, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding). Consideration
of a motion properly filed and before the court is a ministerial act. Id. at 927. Although a
court may be compelled to consider a motion, mandamus is not available to require that
the trial court rule a certain way on that motion. State ex rel. Curry v. Gray, 726
S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding).
Here, Relator alleges that the trial court has failed to rule on his motions to try the
pending cases or dismiss them in light of his right to a speedy trial. However, he does not
request that we direct the trial court to rule on the motions. Instead, he seeks a writ of
mandamus directing that “all pending allegations [be] dismissed with prejudice” or that a
bench warrant be issued for his immediate trial. Mandamus is not available for this
purpose. See id.
CONCLUSION
Under the facts of this case, we are without authority to issue a writ of mandamus
against the Rains County District Attorney. Therefore, the portion of Relator’s petition
seeking a writ of mandamus directed to the Rains County District Attorney is dismissed
for want of jurisdiction. Because mandamus is not available to compel a trial court to
rule a certain way on a pending motion, the portion of Relator’s petition seeking a writ of
mandamus directed to the trial court is denied.
BRIAN HOYLE__
Justice
Opinion delivered February 10, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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