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In re Pete

Court of Appeals of Texas, Fourteenth District

November 5, 2019

IN RE ANDREW PETE, Relator

          ORIGINAL PROCEEDING WRIT OF MANDAMUS 179th District Court Harris County, Texas Trial Court Cause No. 1535047

          Panel consists of Justices Christopher, Spain, and Poissant (Spain, J., concurring)

          OPINION

          PER CURIAM

         On September 17, 2019, relator Andrew Pete filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Randy Roll, presiding judge of the 179th District Court of Harris County, to rule on relator's motions, which he claims are pending in the trial court.

         To be entitled to mandamus relief, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the relator seeks to compel involves a ministerial act rather than a discretionary act. In re Powell, 516 S.W.3d 488, 494-95 (Tex. Crim. App. 2017) (orig. proceeding). A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding).

         A relator must establish that the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed or refused to rule on the motion within a reasonable time. Id. It is a relator's burden to provide a sufficient record to establish that relator is entitled to relief. Id. Relator has failed to do so. Relator has not attached any file-stamped copies of the motions in question. In the absence of file-stamped copies of the motions, relator has not established that his motions are actually pending in the trial court.

         Even if relator had established that his motions are properly pending, he has not demonstrated that his motions were properly presented to the trial court for rulings. See In re Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding). Filing a document with the district clerk does not impute the clerk's knowledge of the filing to the trial court. In re Craig, 426 S.W.3d 106, 107 (Tex. App.-Houston [1st Dist.] 2012, orig. proceeding) ("The mere filing of a motion with the trial court clerk does not equate to a request that the trial court rule on the motion."). The trial court is not required to consider any motion that has not been called to its attention by proper means. See Henry, 525 S.W.3d at 382.

         Relator has not established that he is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus.

          Poissant, J., joining both the Opinion and Concurring Opinion.

         CONCURRING OPINION

          Charles A. Spain Justice.

         Because the court can deny the petition based on Texas Rule of Appellate Procedure 52.3(k)(1)(A)-the lack of a proper appendix containing a certified or sworn copy of the documents showing the matter complained of, i.e., the motions on which the respondent district judge has allegedly not ruled-I concur in the denial of relator's petition for writ of mandamus.

         It is, therefore, unnecessary for the court to cite to In re Henry and In re Craig in order to deny the petition. Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding) (corrected op., per curiam) ("Relator also has not shown that his motion has been presented to the trial court nor has he shown how long the motion has been pending since presentment. The trial court is not required to consider a motion that has not been called to its attention by proper means."); Craig, 426 S.W.3d 106, 107 (Tex. App.-Houston [1st Dist.] 2012, orig. proceeding) (per curiam) ("The mere filing of a motion with a trial court clerk does not equate to a request that the trial court rule on the motion."). Henry is a mandamus proceeding against a trial judge who allegedly had not ruled in the underlying criminal case on a criminal defendant's motion to compel a ruling on a motion to reduce sentence. Craig is a mandamus proceeding to compel the trial judge to rule in the underlying criminal case on a motion for judgment nunc pro tunc.

         These opinions are part of a line of cases from the courts of appeals that purports to set out the procedure for motion practice in criminal courts. And it seems the foundation for those lines of cases is either civil cases or the presentment practice for motions for new trials in criminal cases. The problem with these cases is that (1) the legislature, not the judiciary, generally makes the rules of procedure in criminal cases and (2) the underlying motion in this original proceeding is not a motion for new trial. See Tex. Code Crim. Proc. Ann. art. 1.03 (setting out objects of the Code of Criminal Procedure); see generally 40 George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure §§ 1:4-1:10 (3d ed. 2011). The Code of Criminal Procedure does provide that "the rules of the common law shall be applied and govern" if the Code "fails to provide a rule of procedure in any particular state of case which may arise," but I have found no cases which use article 1.27 to fashion a general requirement that motions be presented or that incarcerated defendants be required to request that the court rule on filed motions.[1]Tex. Code. Crim. Proc. Ann. art. 1.27. I certainly have found no cogent explanation of how an incarcerated person, who presumably cannot get a bench ...


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