In Re: Ray Dale Hooks--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00132-CV

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IN RE:

RAY DALE HOOKS

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Ray Dale Hooks has petitioned this Court for mandamus relief. Hooks alleges he has filed with the trial court a request for DNA testing as provided by Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2005). Hooks now claims that, for more than a year, the trial court has failed to rule on this motion.

When a motion is properly filed and pending before a trial court, considering and ruling on that motion is a ministerial act, and mandamus may issue to compel the trial court to act. In re Kleven, 100 S.W.3d 643, 644 (Tex. App. Texarkana 2003, orig. proceeding); see also Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (holding trial court abused its discretion by refusing to conduct hearing and render decision on motion). Before a relator may be entitled to mandamus relief, however, he or she must provide a sufficient record to show the motion was presented to the trial court and that court refused to act. In re Villarreal, 96 S.W.3d 708, 710 n.2 (Tex. App. Amarillo 2003, orig. proceeding) (filing document with district clerk's office does not demonstrate that motion has been brought to trial court's attention).

Hooks' petition for mandamus relief is not accompanied by a certified or sworn copy of the motion that is the subject of his complaint, as is required by Rule 52.3(j)(1)(A) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 52.3(j)(1)(A).

Accordingly, we deny his petition for writ of mandamus.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 6, 2005

Date Decided: December 7, 2005