In Re Donnell James Elam--Appeal from Criminal District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-03-142 CV
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IN RE DONNELL JAMES ELAM
Original Proceeding
MEMORANDUM OPINION (1)

On March 18, 2003, Donnell James Elam filed a petition for writ of mandamus. The relator seeks an order to compel the Honorable Charles Carver, Judge of the Criminal District Court of Jefferson County, Texas, to try or to dismiss his criminal case.

In order to determine whether the relator is entitled to the relief sought, we must first determine the nature of the proceedings before the trial court. Elam filed a pro se motion for leave to file an original petition for writ of habeas corpus with the Court of Criminal Appeals, together with a petition for writ of habeas corpus that alleges that he is being confined in violation of his constitutional right to a speedy trial. On January 10, 2003, the trial court signed an order that directed the clerk to docket the petition and forward it with a copy of the record to the Court of Criminal Appeals, presumably because Elam's motion asked that the writ be filed with that court.

We may grant mandamus relief if relator demonstrates that the act sought to be compelled is purely ministerial under the relevant facts and law, and that relator has no other adequate legal remedy. State ex. rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). An act is "ministerial" if it does not involve the exercise of any discretion or the relator's entitlement to the relief sought is clear and indisputable such that its merits are beyond dispute. Id. at 927-28. The act of considering a motion, such as an application for a writ of habeas corpus, is ministerial. In re Bates, 65 S.W.3d 133, 134-35 (Tex. App.--Amarillo 2001, orig. proceeding). The ruling on the writ of habeas corpus, on the other hand, is not subject to review by mandamus. See Smith v. Gohmert, 962 S.W.2d 590, 593 (Tex. Crim. App. 1998). In this case, the relator has not shown that the trial court refused to consider a duly filed and presented motion.

The petition for writ of mandamus is therefore denied.

WRIT DENIED.

PER CURIAM

Opinion Delivered March 20, 2003

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.