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

MEMORANDUM OPINION

No. 04-05-00823-CV

IN RE David G. SAUCEDA, Jr.

Original Mandamus Proceeding //

PER CURIAM

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: December 21, 2005

PETITION FOR WRIT OF MANDAMUS DENIED

David G. Sauceda, Jr., seeks a writ of mandamus to compel the trial court to rule on his motion for speedy trial in the underlying cause. // A trial court has a legal, nondiscretionary duty to consider and rule on a properly filed motion within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App. San Antonio 1998, orig. proceeding). However, to be entitled to mandamus relief, a relator has the burden of providing a record that establishes the filing of the motion, the trial court s awareness of the motion, and the trial court s refusal or failure to act within a reasonable period of time. Barnes v. State, 832 S.W.2d 424, 426-27 (Tex. App. Houston [1st Dist.] 1992, orig. proceeding).

The mandamus record before us fails to establish that Sauceda s motion was filed and is pending before the trial court. The motion for speedy trial accompanying Sauceda s petition is not file-stamped. The record does not indicate that the clerk received the motion for filing or that Sauceda mailed the motion to the clerk. See Ex parte Bates, 65 S.W.3d 133, 135-36 (Tex. App. Amarillo 2001, orig. proceeding) (denying a writ of mandamus directing the trial court to rule on motions when the record failed to establish that the motions had been filed). Because Sauceda has not established that a properly filed motion has awaited disposition for an unreasonable time, he has not provided the court with a sufficient record upon which mandamus relief may be granted. Accordingly, the petition for a writ of mandamus is denied.

PER CURIAM