in Re: Dario Molina

DISMISS, and Opinion Filed May 29, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00524-CV
No. 05-19-00525-CV
IN RE DARIO MOLINA, Relator
Original Proceeding from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F15-23109-R & F15-23232-R
MEMORANDUM OPINION
Before Justices Brown, Schenck, and Reichek
Opinion by Justice Schenck
In this original proceeding, relator seeks a writ of mandamus to compel the court reporter
to provide him with a statement of the cost to prepare the reporter’s record of his trial for use in a
future application for writ of habeas corpus under article 11.07 of the code of criminal procedure.
We lack jurisdiction over this original proceeding.
The court of criminal appeals has general mandamus authority including the power to issue
a writ of mandamus against a court reporter. See Padieu v. Court of Appeals of Texas, Fifth Dist.,
392 S.W.3d 115, 116 (Tex. Crim. App. 2013) (per curiam). This Court does not have jurisdiction
to issue writs of mandamus against a court reporter unless it is necessary to enforce our own
jurisdiction. See TEX. GOV’T CODE ANN. § 22.221(a), (b) (authorizing court of appeals to issue
writs of mandamus against district and county judges within appellate court’s geographic
jurisdiction or when necessary to enforce appellate court’s jurisdiction). Relator has no appeal
pending in this Court and, therefore, our jurisdiction is not in jeopardy.
Although relator states in his petition that he filed a motion to compel the court reporter to
provide the cost estimate, and the trial court has not ruled on that motion, relator does not seek a
writ of mandamus directing the trial court to act. Rather, his petition for writ of mandamus is
directed only at the court reporter. We, therefore, decline to construe his petition as a request for
a writ of mandamus directing the trial court to rule on the motion to compel.
Moreover, to be entitled to mandamus relief compelling a trial court to rule on a motion, a
relator must establish that the trial court (1) had a legal duty to rule on the motion because the
motion was properly filed and timely presented, (2) was asked to rule on the motion, and (3) failed
or refused to rule on the motion within a reasonable period of time. In re Molina, 94 S.W.3d 885,
886 (Tex. App.—San Antonio 2003, orig. proceeding). As the party seeking relief, the relator has
the burden of providing the Court with a sufficient mandamus record to establish his right to
mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Here,
relator has not provided the Court with a sworn or certified copy of the motion to compel, nor has
he provided proof that he has brought the motion to compel to the trial court’s attention and the
trial court has failed to rule within a reasonable time. Relator’s record is insufficient to establish
that the motion was properly filed and timely presented and that the trial court was asked to rule
but failed to do so within a reasonable time. TEX. R. APP. P. 52.3(k)(1)(a), 52.7(a). This record is
insufficient to establish that the motion was properly filed and timely presented and that the trial
court was asked to rule but failed to do so within a reasonable time. As such, relator has not
established that the trial court violated a ministerial duty and would not be entitled to mandamus
relief against the trial court under this record.
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Accordingly, we dismiss relator’s petition for writ of mandamus.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
190524F.P05
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