In re David G. Sauceda, Jr.--Appeal from County Court at Law No 5 of Bexar County

MEMORANDUM OPINION

No. 04-05-00640-CV

IN RE David G. SAUCEDA

Original Mandamus Proceeding //

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 28, 2005

PETITION FOR WRIT OF MANDAMUS DENIED

On September 7, 2005, relator filed a Motion for Leave Accompanying Petition for Writ of Mandamus and a Petition for Writ of Mandamus in which he complains that criminal charges have been pending against him for four years and his Motion for Pre-Trial and Indigent Appointment [of] Counsel, Motion Requesting Plea Agreement has been pending before the trial court since June 2003. Relator asks this court to either order the trial court to dismiss the charges against him or order the trial court to rule on his motion and set a pre-trial conference. No leave is required to file a petition for writ of mandamus; therefore, we DENY the motion for leave to file as moot.

A defendant seeking to compel a dismissal of an indictment on speedy trial grounds is not eligible for mandamus relief because he has an adequate remedy at law. Pope v. Ferguson, 445 S.W.2d 950, 955-56 (Tex. 1969) (orig. proceeding).

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 provided this court with a copy of his motion, but there is no indication of when he filed the motion. Nor has relator provided this court with a copy of the trial court s docket, or any other proof that his motion is 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.

For these reasons, 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