In re Jason Drake--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00246-CV

IN RE Jason DRAKE

Arising from the 290th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-5593

Honorable Sharon MacRae, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Justice

Paul Green, Justice

Sandee Bryan Marion, Justice

Delivered and filed: April 16, 2003

PETITION FOR WRIT OF MANDAMUS DENIED

On April 2, 2003, relator filed a petition for writ of mandamus, asking this court to order the trial court to rule on a motion to modify his sentence. A trial court is required to consider and rule upon a motion within a reasonable time. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.--San Antonio 1997, orig. proceeding). When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act. Id. However, the trial court has a reasonable time within which to perform this ministerial duty. Id. Accordingly, if a court unnecessarily delays ruling, mandamus will lie in appropriate situations. Here, relator has not provided this court with copies of his motions, a copy of the trial court's docket, or any other proof that he filed these motions and that they are pending before the trial court. It is the relator's burden to provide this court with a record sufficient to establish his right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); Tex. R. App. P. 52.3(j), 52.7(a).

Because relator has not met his burden of providing a record establishing that a properly filed motion has awaited disposition for an unreasonable time, he has not provided the court with grounds to usurp the trial court's inherent authority to control its own docket. Therefore, this court has determined that relator is not entitled to the relief sought, and the petition is DENIED. Tex. R. App. P. 52.8(a).

PER CURIAM