in Re Roy L. Smithwick, Jr. ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00907-CR
IN RE Roy L. SMITHWICK Jr.
Original Mandamus Proceedings 1
PER CURIAM
Sitting: Karen Angelini, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: February 5, 2014
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART
On December 27, 2013, relator Roy L. Smithwick, an inmate in the Texas Department of
Criminal Justice-Institutional Division, filed a pro se petition for writ of mandamus complaining,
in part, of the trial court’s failure to rule on a separate petition for writ of mandamus and motion
filed in the underlying criminal proceeding. On January 9, 2014, this court requested a response to
Smithwick’s petition. A response was filed on behalf of the State of Texas as the real party in
interest. No response was filed on behalf of the respondent judge. Because the trial court has a
ministerial duty to consider and rule upon pending motions within a reasonable period of time, we
conditionally grant mandamus relief in part and direct the trial court to rule on Smithwick’s
pending petition and motion.
1
This proceeding arises out of Cause No. 1992CRA00041-D1, styled The State of Texas v. Roy L. Smithwick Jr.,
pending in the 49th Judicial District Court, Webb County, Texas, the Honorable Jose A. Lopez presiding.
04-13-00907-CR
DISCUSSION
Smithwick was convicted on two counts of felony murder in 1992 and sentenced to life in
prison. This court affirmed his conviction on direct appeal. See Smithwick v. State, No. 04-92-
00520-CR, 1995 WL 540279 (Tex. App.—San Antonio Sept. 13, 1995, no pet.) (not designated
for publication). Smithwick has since filed multiple petitions for writs of habeas corpus, all of
which have been denied.
Smithwick filed a petition for writ of mandamus in the trial court in September 2013 in
which he seeks to have the Webb County district attorney ordered to comply with what Smithwick
characterizes as ministerial duties. He also filed a “motion for interim action” in which he requests,
among other things, that the trial court conduct an oral hearing to address his various complaints.
We construe the essential complaint in Smithwick’s mandamus petition filed in this court to be
that the trial court has failed to rule upon his filings within a reasonable period of time. See In re
Ramirez, 994 S.W.2d 682, 683 (Tex. App.—San Antonio 1998, orig. proceeding). Smithwick also
requests additional specific relief from this court, none of which is appropriate for this court on
mandamus review. Accordingly, we deny Smithwick’s requests beyond the specific relief
addressed below.
A trial court is required to consider and rule upon pending motions within a reasonable
time. Id. “When a motion is properly filed and pending before a trial court, the act of giving
consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to
compel the trial judge to act.” Id. at 683-84 (citing Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268,
269 (Tex. App.—San Antonio 1997, orig. proceeding)). If a motion has been properly filed and
brought to the attention of the trial court, this court may direct the trial court to consider and rule
upon the motion; however, we may not tell the trial court what ruling it should make. See Ramirez,
994 S.W.2d at 684.
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04-13-00907-CR
There is no dispute that Smithwick filed a mandamus petition and motion for interim action
in the trial court and that the trial court has been made aware of these filings. This court requested
a response to Smithwick’s mandamus petition complaining of the trial court’s inaction on the
pending matters. The respondent judge has not provided a response or taken any action to rule on
Smithwick’s requests despite the filing of this mandamus petition. While we take no position as to
the merits of Smithwick’s claims or requests made to the trial court, the trial court has a ministerial
duty to rule on pending requests which is unrelated to the viability of Smithwick’s claims.
While Smithwick’s requests have not been pending for what would be considered an
unreasonable period of time as a matter of law, because the trial court has been made aware that
Smithwick, who is incarcerated, desires a ruling and we are aware of no law which relieves the
court of its duty to rule, we conditionally grant mandamus relief in part. See In re Hearn, 137
S.W.3d 681, 686 (Tex. App.—San Antonio 2004, orig. proceeding). We are confident the trial
court will do as directed. The writ will issue only if we are notified that the trial court has failed to
rule on the mandamus petition and motion for interim action currently pending before the trial
court as ordered.
PER CURIAM
DO NOT PUBLISH
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