in Re: Timothy A. Foley

DENIED and Opinion Filed May 6, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00448-CV
No. 05-19-00449-CV
IN RE TIMOTHY A. FOLEY, Relator
Original Proceeding from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause Nos. F10-52915-Y & F11-00194-Y
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Nowell
Opinion by Justice Myers
In each of these original proceedings, relator has filed an identical petition for writ of
mandamus. In his petitions, relator contends the trial court has not ruled on his (1) motion to obtain
an entire copy of trial counsel’s defense file, (2) application for subpoena duces tecum directed at
trial counsel to turn over the file, (3) motion for an indigent copy of the clerk’s and reporter’s
record, and (4) motion to compel trial counsel to relinquish relator’s entire defense file. Relator
contends the first three documents were filed on March 15, 2019, and the fourth was filed on April
8, 2019. Relator filed his petitions for writ of mandamus on April 18, 2019. Relator contends the
trial court granted a similar motion and subpoena request for his appellate counsel’s file and he
has received a copy of that file. We deny the petitions.
To establish a right to mandamus relief in a criminal case, the relator must show that the
trial court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel.
Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (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). Rules 52.3 and 52.7 require the relator to provide “a certified or sworn copy” of
certain documents, including any order complained of, any other document showing the matter
complained of, and every document that is material to the relator’s claim for relief that was filed
in any underlying proceeding. TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).
Here, the mandamus records do not include certified or sworn copies of the motions and
subpoena request nor do they include certified or sworn copies of the trial court’s docket sheets or
other proof that establishes relator filed the motions, requested a hearing and/or ruling on the
motions, and the trial court has failed to act on relator’s requests within a reasonable time. TEX.
R. APP. P. 52.3(k)(1)(a), 52.7(a). The records are insufficient to establish that the motions and
subpoena request were properly filed and timely presented and that the trial court was asked to
rule but failed to do so within a reasonable time. Further, the trial court has not been given a
reasonable time in which to rule. As such, relator has not established a violation of a ministerial
duty and is not entitled to mandamus relief. Accordingly, we deny relator’s petitions for writ of
mandamus. See TEX. R. APP. P. 52.8(a) (the court must deny the petition if the court determines
relator is not entitled to the relief sought).
/Lana Myers/
LANA MYERS
JUSTICE
190448F.P05
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