in Re Thomas Florence ( 2010 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 7, 2010.

In The

Fourteenth Court of Appeals

NO. 14-10-00924-CR

In Re Thomas Florence, Relator

  ORIGINAL PROCEEDING

WRIT OF MANDAMUS  

MEMORANDUM OPINION

On September 27, 2010, relator Thomas Florence filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, relator asks this court to compel the “court” to “order a factfinding or probable cause hearing, order the State to produce the Febuary [sic] 26, 2010; Febuary [sic] 27, 2010 hospital records from Ben Taub to this court.”  Relator further requests that this court “order petitioner released squash [sic] invalid indictment with prejudice.” 

To be entitled to mandamus relief, a relator must show that he has no adequate remedy at law to redress his alleged harm, and what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision.  State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig.proceeding). Consideration of a motion that is properly filed and before the court is a ministerial act.  State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App.1987) (orig.proceeding).  A relator must establish the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so.  In re Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding) (relator must show that trial court received, was aware of, and was asked to rule on motion).

Absent a showing the trial court is aware of and been asked to rule on relator’s request, relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relator’s petition for writ of mandamus.

                                                                                    PER CURIAM

Panel consists of Justices Anderson, Frost, and Brown.

Do Not Publish — Tex. R. App. P. 47.2(b).