In re Glen Edward Heflin--Appeal from 365th Judicial District Court of Maverick County

PER CURIAM

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis Speedlin, Justice

Delivered and Filed: May 7, 2003

PETITION FOR WRIT OF MANDAMUS DENIED

On April 23, 2003, relator, Glen Edward Heflin, filed a petition for writ of mandamus, seeking to compel the Honorable Amado Abascal, III, presiding judge of the 365th Judicial District Court, Maverick County, Texas, to rule on his post-conviction motion to correct the calculation of his jail time credit in the judgment.

A trial judge has a legal, nondiscretionary duty to consider and rule on properly filed motions within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.--San Antonio 1998, orig. proceeding). However, a trial judge abuses his discretion only if the motion has been brought to his attention and he refuses to rule on it within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding); see also In re Chavez, 62 S.W.3d 225, 228 (Tex. App.--Amarillo 2001, orig. proceeding).

There is no indication in the mandamus petition or record that, after filing the motion with the district clerk, Heflin asked Judge Abascal to rule on the motion or otherwise did anything to bring the motion to Judge Abascal's attention. Accordingly, Heflin has failed to show an abuse of discretion by the trial judge. See Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 424. (2) Therefore, the petition is denied. Tex. R. App. P. 52.8(a).

PER CURIAM

1. This proceeding arises out of Cause No. 00-08-05181-CR, styled The State of Texas v. Glenn Edward Heflin, pending in the 365th Judicial District Court, Maverick County, Texas, the Honorable Amado Abascal, III presiding.

2. Even had Heflin brought the motion to the attention of the trial court, we note that Heflin must exhaust his administrative remedies before filing such a motion in the trial court. Section 501.0081 of the Texas Government Code sets forth the proper procedure to be followed in resolving complaints regarding time-served credit. See Tex. Gov't Code Ann. 501.0081 (Vernon Supp. 2003).