In re Daniel Chacon Rodriguez--Appeal from 216th Judicial District Court of Kerr County

MEMORANDUM OPINION
No. 04-04-00785-CV
IN RE Daniel Chacon RODRIGUEZ
Original Mandamus Proceeding (1)

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 15, 2004

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

On November 3, 2004, Relator Daniel Chacon Rodriguez filed a petition for writ of mandamus, requesting that we order the trial court to rule on his "Motion for Court to Direct Court Reporter and Clerk to Forward Copies of Records to the Defendant Free of Charge." Because the trial court has failed to rule upon Ramirez's motion, we conditionally grant the petition for writ of mandamus.

Background

Daniel Chacon Rodriguez was convicted of aggravated robbery and was sentenced to seventy years imprisonment. Rodriguez v. State, No. 04-00-00579-CR, 2001 WL 1360020, at *1 (Tex. App.--San Antonio 2001, no pet.). On November 7, 2000, we affirmed his conviction. Id. On July 12, 2004, Rodriguez filed a motion with the trial court, seeking free copies of the clerk's record and reporter's record. According to Rodriguez, he wishes to file a petition for writ of habeas corpus and needs the appellate record to do so. On August 10, 2004 (file-stamped August 16th), Rodriguez mailed a letter to the trial court, asking that the trial court rule on his motion. When the trial court failed to rule on his motion, Rodriguez filed a petition for writ of mandamus here.

Standard of Review

Mandamus is an extraordinary remedy, and it will lie only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

Discussion

Rodriguez argues that the trial court abused its discretion in failing to rule on his motion. A trial court is required to consider and rule upon a motion within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.--San Antonio 1998, 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." Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.--San Antonio 1997, orig. proceeding) (citation omitted); see also Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding) (holding that trial court abused its discretion by refusing to conduct hearing and render decision on motion).

The motion in question was filed on July 12, 2004. Rodriguez's letter presenting the motion to the trial court was filed on August 16, 2004. The trial court, however, has not yet ruled on Rodriguez's motion.

In response to Rodriguez's petition, the trial court has filed a letter with this court, stating that Kerr County has already been billed by the court reporter for one copy of the record. That copy was forwarded to Rodriguez's appointed appellate counsel. Thus, according to the trial court, Rodriguez is requesting that the County pay for two records. The trial court then states, "I will await your orders on whether or not an indigent defendant is entitled to more than one copy of a trial record."

This statement by the trial court goes directly to the merits of Rodriguez's motion. We cannot direct the trial court on what ruling it should enter. See Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 105 (Tex. 1962); Ramirez, 994 S.W.2d at 684. The trial court must, however, perform its ministerial act by ruling on Rodriguez's motion.

Conclusion

Because the trial court has failed to rule upon Rodriguez's motion, we conditionally grant Rodriguez's petition for writ of mandamus and direct respondent to consider and rule upon Rodriguez's motion within ten days. Only if the Honorable Stephen B. Ables fails to comply will we issue the writ.

Karen Angelini, Justice

1. This proceeding arises out of Cause No. A99-250, styled The State of Texas v. Daniel Chacon Rodriguez, pending in the 216th Judicial District Court, Kerr County, Texas, the Honorable Stephen B. Ables presiding.