In re David R. Salinas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00582-CV

IN RE David R. SALINAS

Original Mandamus Proceeding //

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 28, 2005

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

By this original proceeding, relator David Salinas, an inmate proceeding pro se, seeks a writ of mandamus to compel the Honorable Teresa Herr of the 186th Judicial District Court, Bexar County, Texas to rule on his November 7, 2003 Motion for Judgment and Sentence Nunc Pro Tunc. Because the trial court has failed to rule upon Salinas s motion, we conditionally grant the petition for writ of mandamus.

On November 7, 2003, Salinas filed a Motion for Judgment and Sentence Nunc Pro Tunc with the 186th Judicial District Court, Bexar County, Texas seeking post-sentence jail time credit. When the district court failed to rule on his motion, Salinas filed a second motion for judgment and sentence nunc pro tunc with the court on May 23, 2005. In this motion, Salinas urged the court to rule on his prior Motion for Judgment and Sentence Nunc Pro Tunc and to correct the degree of offense reflected in the court s judgment in Cause No. 1996-CR-1190. Salinas subsequently sent the court a letter on July 7, 2005 urging the court to rule on his motions. // On July 28, 2005, the trial court granted Salinas s second motion and entered a judgment nunc pro tunc reflecting the degree of offense in Cause No. 1996-CR-1190 as a second degree felony; however, the court took no action on Salinas s first motion.

On August 17, 2005, Salinas filed this petition for writ of mandamus to compel Judge Herr to rule on his first Motion for Judgment and Sentence Nunc Pro Tunc. On August 29, 2005, Judge Herr filed a response to Salinas s petition, indicating that there is no record of the trial court receiving Salinas s first motion or his July 7, 2005 correspondence. In support of her contention, Judge Herr attached a copy of a docket sheet showing the court did not receive documents from Salinas on November 7, 2003 or July 7, 2005.

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.

In light of the record presented, we must conclude the trial court abused its discretion by taking no action on Salinas s first Motion for Judgment and Sentence Nunc Pro Tunc. Although we recognize that the trial court s docket sheet shows the court received no documents from Salinas on either November 7, 2003 or July 7, 2005, the certified-mail receipts included in the record clearly demonstrate the trial judge personally received Salinas s motion on November 7, 2003. The certified-mail receipts further demonstrate that the trial court received additional documents concerning Salinas s motion on May 23, 2005 and July 7, 2005. The record before us thus demonstrates that although the trial court was made aware of Salinas s first motion, the court to date has not performed its ministerial duty of considering and ruling on Salinas s motion. Further, from the response we received from the trial court, it is evident that the court has no plans to take any action on Salinas s motion.

According to the trial court, even if Salinas s motion were brought to the court s attention, the court lacks jurisdiction to consider post-sentencing credit by way of a motion for judgment nunc pro tunc. This argument about jurisdiction, however, goes to the merits of Salinas s motion. In this original proceeding, we consider only whether the trial court has failed to perform its ministerial act of ruling on Salinas s motion, not the merits of Salinas s complaint. If the trial court does not have jurisdiction (as it claims in its response), then Salinas s motion should be dismissed for lack of jurisdiction. If, however, the trial court does have jurisdiction, then it should determine whether the motion should be granted or denied.

Because the trial court has failed to rule upon Salinas s first motion, we conditionally grant Salinas s petition for writ of mandamus and direct respondent to consider and rule upon Salinas s motion within ten days. A writ will be issued only if necessary to effect compliance with this opinion.

Catherine Stone, Justice