In re Fred Campbell--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-07-00313-CV

IN RE FRED CAMPBELL

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

Delivered and Filed: May 16, 2007

PETITION FOR WRIT OF MANDAMUS DENIED

On May 1, 2007, relator filed a petition for writ of mandamus, asking this court to order the trial court to rule on his motions for DNA testing. Relator alleges he has filed two motions requesting DNA testing, in 2004 and in 2006, and the trial court has refused to rule on either motion. 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

1. This proceeding arises out of Cause No. 1984-CR-0397-A, styled The State of Texas v. Fred Campbell, filed in the 187th Judicial District Court, Bexar County, Texas.