Court of Appeals of Texas, Fifth District, Dallas
Proceeding from the Criminal District Court No. 7 Dallas
County, Texas Trial Court Cause No. F12-51405-Y
Justices Francis, Brown, and Whitehill
original proceeding, relator complains that the trial court
has not held an adversary hearing to determine whether
relator should be transferred from the Mexia State Supported
Living Center (SSLC) to a Home and Community Based Services
(HSC) Program in Dallas, Texas. Article 46B of the Texas Code
of Criminal Procedure does not require a trial court to hold
a hearing to determine whether to approve a recommended
transfer, and relator has not requested a hearing. We deny
the petition for writ of mandamus.
2012, relator was indicted for the felony offense of
indecency with a child but was deemed incompetent to stand
trial due to an intellectual disability. Powell v.
State, 487 S.W.3d 768, 769 (Tex. App.-Dallas 2016, no
pet.). After relator's initial 120-day commitment
pursuant to section 46B.073(b)(2) of the code of criminal
procedure and a commitment hearing, the trial court ordered
relator be committed to the Vernon Campus "or any
residential care facility designated by the Department of
Aging and Disability Services for long term residential
care." The judgment provides that the criminal charge
against relator remains pending and that relator is not to be
released without specific approval from the trial court.
Relator did not appeal the judgment. He was ultimately
transferred from the Vernon Campus to the Mexia State
Supported Living Center (Mexia SSLC).
11, 2017, the director of the Mexia SSLC sent a letter to the
trial court stating that the Mexia facility had conducted its
annual assessment of relator to determine his ongoing needs
and determined that his placement at the Mexia facility is no
longer an appropriate placement because relator "can be
better treated and habilitated in an alternate placement
outside of an institutional setting" and "the Mexia
SSLC is no longer the least restrictive environment" for
relator. The Interdisciplinary Team recommended that relator
be transferred to an HSC Program in Dallas, Texas. Similar
recommendations in 2014 and 2015 were rejected by the trial
court. In this original proceeding, relator complains that
the trial court has not held a hearing to address
relator's proposed transition to an HSC facility.
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). Further, 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. Lizcano v. Chatham, 416 S.W.3d 862,
863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J.
concurring); Walker v. Packer, 827 S.W.2d 833, 837
(Tex. 1992) (orig. proceeding). A trial court has a
ministerial duty to rule upon a properly filed and timely
presented motion. See State ex rel. Young v. Sixth
Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210
(Tex. Crim. App. 2007) (orig. proceeding).
properly filed and timely presented, a motion must be
presented to a trial court at a time when the court has
authority to act on the motion. See In re Hogg-Bey,
No. 05-15-01421- CV, 2015 WL 9591997, at *1-2 (Tex.
App.-Dallas Dec. 30, 2015, orig. proceeding) (mem. op., not
designated for publication). No litigant is entitled to a
hearing at whatever time he may choose, however. In re
Chavez, 62 S.W.3d 225, 229 (Tex. App.-Amarillo 2001,
orig. proceeding). A trial court has a reasonable time within
which to consider a motion and to rule. In re Craig,
426 S.W.3d 106, 107 (Tex. App.-Houston [1st Dist.] 2012,
orig. proceeding); In re Sarkissian, 243 S.W.3d 860,
861 (Tex. App.-Waco 2008, orig. proceeding).
petition does not include a record showing that he is
entitled to mandamus relief. The trial court is not required
to hold a hearing to determine whether transfer is
appropriate but "may" do so on its own motion or
the motion of the attorney representing the state. Tex. Crim.
Proc. Code § 46B.107(d). Relator has not requested a
hearing or filed a motion for relator's transfer pursuant
to the recommendation of the Mexia SSLC. Further, the record
does not show that the letter was filed with the trial court
or brought to the trial court's attention. Absent a
timely-filed and properly-presented motion, the trial ...