Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the 397th Judicial District Court
Grayson County, Texas Trial Court Cause No. 060321
Justices Myers, Molberg, and Nowell
Aaron Wade Smith filed a motion titled "Habeas Corpus /
District Court" in the trial court in November 2018. In
that motion, relator seeks a copy of the trial transcript or,
alternatively, access to the trial transcript, for use in
preparing a post-conviction petition for writ of habeas
corpus. In this original proceeding, relator seeks a writ of
mandamus directing the trial court to rule on and grant that
motion. By order dated April 18, 2019, we requested responses
from the real party in interest and Respondent. The responses
were due on May 2, 2019, but none were filed. After reviewing
the petition and the mandamus record, we conclude relator is
entitled to the relief requested, and we conditionally grant
the writ of mandamus.
first address this Court's jurisdiction over this
proceeding. While courts of appeals have mandamus
jurisdiction in criminal matters, see Tex. Gov't
Code Ann. § 22.221, only the Texas Court of Criminal
Appeals has jurisdiction in final, post-conviction habeas
corpus proceedings. See Tex. Code Crim. Proc. Ann.
art. 11.07; In re McAfee, 53 S.W.3d 715, 717 (Tex.
App.-Houston [1st Dist.] 2001, orig. proceeding).
"Article 11.07 contains no role for the courts of
appeals; the only courts referred to are the convicting court
and the Court of Criminal Appeals." In re
McAfee, 53 S.W.3d at 718. If an applicant finds it
necessary to complain about an action or inaction of the
convicting court in relation to an 11.07 action, the
applicant may seek mandamus relief directly from the Texas
Court of Criminal Appeals. Id. "When there is
no pending application for habeas corpus filed under Article
11.07 of the Code of Criminal Procedure," however, then
the court of appeals is not without jurisdiction to rule on
mandamus petitions relating to a motion requesting access to
material that could be used in a future habeas application.
Padieu v. Court of Appeals of Tex., Fifth Dist., 392
S.W.3d 115, 117-18 (Tex. Crim. App. 2013) (orig. proceeding)
relator titled the motion at issue "Habeas Corpus /
District Court." Despite the title, the motion seeks a
copy of the transcript or, alternatively, access to the trial
transcript for relator to use in preparing a post-conviction
petition for writ of habeas corpus. In the motion, relator
does not seek habeas corpus relief or attack the underlying
judgment. We construe relator's "Habeas Corpus /
District Court" motion as a motion requesting access to
material rather than a request for habeas corpus relief
because the motion itself does not seek article 11.07 relief.
See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833
(Tex. 1980) (orig. proceeding) (substance of pleading
controls over title or form); Bertrand v. Bertrand,
449 S.W.3d 856, 864, n.9 (Tex. App.-Dallas 2014, no pet.)
(same citing Heard); Rush v. Barrios, 56
S.W.3d 88, 93 (Tex. App.-Houston [14th Dist.] 2001, pet.
denied) (substance of a pleading or writing controls over the
title or label appended to it). As such, we conclude we have
writ jurisdiction over this proceeding. See Padieu,
392 S.W.3d at 117-18.
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). 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). To be 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 Timms, No. 05-16-00129- CV, 2016 WL
542112, at *1 (Tex. App.-Dallas Feb. 11, 2016, orig.
proceeding) (mem. op.); see also 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.). 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). To establish entitlement to mandamus
relief for a trial court's refusal to act, the relator
must establish that the trial court had a legal duty to
perform a ministerial act, relator made demand for
performance, and the court refused to perform.
O'Connor v. First Court of Appeals, 837 S.W.2d
94, 97 (Tex. 1992) (orig. proceeding); In re
Blakeney, 254 S.W.3d 659, 661 (Tex. App.-Texarkana 2008,
Court has jurisdiction to direct the trial court to rule but
not to compel the trial court to rule a certain way on an
issue involving judicial discretion. In re Blakeney,
254 S.W.3d 659, 661 (Tex. App.-Texarkana 2008, orig.
proceeding) ("While we have jurisdiction to direct the
trial court to make a decision, we may not tell the court
what that decision should be."). 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).
prior original proceeding, relator's mandamus record
included non-certified and unsworn copies of the motion at
issue, which showed a mailing date of November 4, 2018, and a
"Motion to Compel," showing a mailing date of
November 20, 2018, in which relator sought to compel the
trial court to rule on his "Habeas Corpus / District
Court" motion. See In re Smith, No.
05-19-00268-CV, 2019 WL 1305970, at *2 (Tex. App.-Dallas Mar.
22, 2019, orig. proceeding). The record in the prior
proceeding, however, did not include a copy of the trial
court's docket sheet or other form of proof to show that
those motions were filed and the trial court had not ruled on
the motions. Id. In this proceeding, relator did not
include copies of the "Habeas Corpus / District
Court" motion or the motion to compel. Instead, relator
included a copy of the trial court's on-line docket
sheet, which shows that the "Habeas Corpus / District
Court" motion was filed on either November 16, 2018 or
November 18, 2018; a "Motion to Compel" was filed
on November 26, 2018; and no action has been taken by the
trial court on either filing.
take judicial notice of the motion and the motion to compel
that were attached to the prior mandamus petition and, in the
interest of justice and judicial economy, we choose to do so
here. See In re Innovation Res. Sol., LLC, No.
12-15-00254-CV, 2016 WL 1254058, at *3 (Tex. App.-Tyler Mar.
31, 2016, orig. proceeding) (taking judicial notice of
hearing transcript filed in prior, related mandamus
proceeding); see also Humphries v. Humphries, 349
S.W.3d 817, 820, n.1 (Tex. App.-Tyler 2011, pet. denied)
(appellate court may take judicial notice of its own records
in same or related proceeding involving same or nearly same
parties); Barnard v. Barnard, 133 S.W.3d 782, 789
(Tex. App.-Fort Worth 2004, pet. denied) (holding that a
court may take judicial notice of its own files, but it
cannot take judicial notice of the truth of any allegations
contained in its records); Clark v. Chrietzberg, 348
S.W.2d 476, 478 (Tex. Civ. App.-Dallas 1961, writ dism'd)
("This court takes judicial notice of its records of a
prior appeal of the same case.").
"Habeas Corpus / District Court" motion and his
motion to compel a ruling on the motion have been pending in
the trial court for more than five months, and relator has
now twice sought relief in this Court. The State and
Respondent declined our request to file responses to the
petition in this proceeding. The trial court has had a
reasonable time in which to rule on the "Habeas Corpus /
District Court" motion but has taken no action. Under
this record, we conclude the trial court has violated its
ministerial duty to rule on relator's motion within a
reasonable time and relator is entitled to mandamus relief.
Accordingly, we conditionally grant relator's petition
for writ of mandamus and direct the trial court to issue a