In Re: Eric Drake v. the State of Texas ( 2024 )

Dismissed in part and Denied in part; and Opinion Filed November 1, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-01028-CV
IN RE ERIC DRAKE, Relator
Original Proceedings from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F22-76307
MEMORANDUM OPINION
Before Justices Molberg, Pedersen, III, and Smith
Opinion by Justice Smith
Before the Court is relator’s August 30, 2024 petition for writ of mandamus.
In his petition, relator raises several issues challenging the transfer of his case to the
204th Judicial District Court, the respondent’s failure to rule or act on a motion to
recuse, alleged violations of his right to a speedy trial, and the appointment of a
visiting judge.
To obtain mandamus relief, relator must show that he has no adequate remedy
at law for obtaining the relief he seeks and that he has a clear right to the relief.
Powell v. Hocker, 516 S.W.3d 488, 494–495 (Tex. Crim. App. 2017) (orig.
proceeding). Where the trial court’s conduct in a criminal proceeding is involved,
the relator must demonstrate that the act he seeks is ministerial, not judicial, in
nature. Id. 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); In re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig. proceeding). A
relator must establish that the respondent (1) had a legal duty to rule on the motion;
(2) was asked to rule on the motion; and (3) failed or refused to do so within a
reasonable time. In re Noble, No. 05-23-00322-CV, 2023 WL 2910619, at *1 (Tex.
App.—Dallas April 12, 2023, orig. proceeding). It is relator’s burden to provide the
court with a record sufficient to establish his right to relief. In re Prado, 522 S.W.3d
at 2 (first citing Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992); and then citing
TEX. R. APP. P. 52.3(k), 52.7(a)).
After reviewing relator’s petition and the record before us, we requested a
response limited to the following issue: whether respondent Judge Tammy Kemp
failed to comply with a duty imposed by rule 18a of the Texas Rules of Civil
Procedure. We received a response from the State advising that Judge Kemp has
signed an order recusing herself and attaching a copy of the recusal order. Because
relator has obtained the relief sought with respect to Judge Kemp’s compliance with
rule 18a, we conclude that this issue and relator’s issue regarding the transfer of his
case to the 204th Judicial District Court are now moot. See In re Bonilla, 424 S.W.3d
528, 534 (Tex. Crim. App. 2014) (orig. proceeding) (there is nothing to mandamus
when relief sought has become moot). Accordingly, we dismiss relator’s petition to
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the extent it relates to Judge Kemp’s compliance with rule 18a and the transfer of
his case to the 204th Judicial District Court. See id.Regarding all remaining issues raised by relator’s petition, we conclude that
relator has failed to demonstrate entitlement to mandamus relief. We therefore deny
relator’s petition as it relates to his remaining issues. See TEX. R. APP. P. 52.8(a).
/Craig Smith/
CRAIG SMITH
JUSTICE
241028F.P05
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