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 2007-11

in Re: Jason Burrow v. State ( 2007 )


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  •                 NO. 12-07-00417-CR

     

    IN THE COURT OF APPEALS

     

    TWELFTH COURT OF APPEALS DISTRICT

     

    TYLER, TEXAS

     

     

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    IN RE: JASON BURROW,  §          ORIGINAL PROCEEDING

    RELATOR

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    MEMORANDUM OPINION

                In this original mandamus proceeding, Jason Burrow alleges that in 2004 he was charged with burglary of a habitation and that the case remains pending on the trial court’s docket.  He alleges further that he has filed “countless motions for bench warrants” with the district clerk, but has received no response to his motions. He seeks a writ of mandamus requiring the Smith County District Clerk and the trial court “to process his pleadings pending before it so that a proper ruling can be made in the interest of justice.”1  We deny the petition.     

                To demonstrate this court’s authority to issue a writ of mandamus against a district clerk, a relator must show that the issuance of the writ is necessary to enforce the court’s jurisdiction.  See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); In re Coronado, 980 S.W.2d 691, 692-93 (Tex. App.–San Antonio 1998, orig. proceeding).  Burrow merely alleges that the district clerk has not responded to his motions for a bench warrant.  He has not stated what response the district clerk is required to make or how the failure to make any such response affects this court’s jurisdiction.  Consequently, we have no authority to issue a writ of mandamus against the district clerk.

                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(b) (Vernon 2004).  Courts of appeals have the power to compel a trial court to rule on pending motions.  In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.–San Antonio 1998, orig. proceeding).  Before mandamus may issue to require a trial court to rule on a motion, the relator must establish that the court was asked to perform the act and failed or refused to do so within a reasonable time.  See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.–San Antonio 1997, orig. proceeding).  Burrow has not filed a record in this proceeding as required by Texas Rule of Appellate Procedure 52.7.  Consequently, we cannot review any motions he has filed nor can we determine whether he has called the trial court’s attention to the motions or requested that hearings be set to determine their merit.  Therefore, Burrow has failed to show that the trial court has abused its discretion by failing to rule on the motions.  See In re Villareal, 96 S.W.3d 708, 710 (Tex. App.–Amarillo 2003, orig. proceeding). 

                We are without jurisdiction to issue a writ of mandamus against the district clerk, and Burrow has not shown any abuse of discretion by the trial court.  Accordingly, the petition for writ of mandamus is dismissed for want of jurisdiction as to the district clerk and denied as to the trial court.

                                                                                                         JAMES T. WORTHEN   

                                                                                                                     Chief Justice

     

    Opinion delivered November 30, 2007.

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

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    (DO NOT PUBLISH)


    1 The respondents are Lois Rogers, Smith County District Clerk and the Honorable Jack Skeen, Jr., Judge of the 241st Judicial District Court, Smith County, Texas.