In Re: Lawrence Reginald Bell--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00007-CV

______________________________

IN RE:

LAWRENCE REGINALD BELL

Original Mandamus Proceeding

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

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Lawrence Reginald Bell seeks a writ of mandamus directing the trial court to rule on his motion to compel the court reporter to prepare and provide Bell with a free copy of the reporter's record in his criminal trial. Based on the record and pleadings before us, and without hearing oral argument, we deny the petition for writ of mandamus.

According to his petition for writ of mandamus, Bell asked the trial court to compel the court reporter to prepare a full statement of facts in cause number 00-15721, without charge due to Bell's indigency. // On or about November 9, 2003, Bell asked the trial court to rule on his motion to compel. On or about December 10, 2003, Bell again requested the trial court to enter a ruling on his earlier motion to compel and to inform him of the court's ruling. By January 12, 2004, Bell had received no response from the trial court.

When Mandamus Relief Is Available

Mandamus will issue only when the record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839 40 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only if the trial court clearly abuses its discretion or, in the absence of another statutory remedy, fails to observe a mandatory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (orig. proceeding).

Mandamus may issue even on questions of first impression if, as a matter of law, the trial court erred in its analysis and reached an erroneous legal conclusion. Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1995) (orig. proceeding).

Ruling on Motions

A trial court is required to consider and rule on a motion within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App. Houston [1st Dist.] 1992, orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265, 266 67 (Tex. Civ. App. Tyler 1976, orig. proceeding). 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. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App. San Antonio 1997, 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); Chiles v. Schuble, 788 S.W.2d 205, 207 (Tex. App. Houston [14th Dist.] 1990, orig. proceeding) (finding mandamus appropriate to require trial court to hold hearing and exercise discretion). While we have jurisdiction to direct the trial court to make a decision, we may not tell the court what that decision should be. O'Donniley v. Golden, 860 S.W.2d 267, 269 70 (Tex. App. Tyler 1993, orig. proceeding).

Bell's Application Is Moot

In the case now before us, Bell asks us to order the trial court to rule on his motion to compel the court reporter to provide Bell with a free transcript of the hearing(s) in trial court cause number 00-15721. The trial court has informed this Court that the court reporter has located and furnished a copy of the hearing transcript to Bell. Based on this information, the objective sought by Bell through petition for writ of mandamus from this Court has already been achieved. We deny Bell's petition as moot.

Josh R. Morriss, III

Chief Justice

Date Submitted: February 9, 2004

Date Decided: February 10, 2004