In Re: Calvin Ray Cash--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00045-CV

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IN RE: CALVIN RAY CASH

Original Mandamus Proceeding

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

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Calvin Ray Cash has filed a petition for writ of mandamus. He asks this Court to order the trial court to set a date to hear his motion for a "Franks hearing," // which he states has been languishing in the trial court for over eight months.

"'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." 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) (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) (mandamus appropriate to require trial court to hold hearing and exercise discretion).

Cash references three 1999 Hopkins County convictions for which he is now imprisoned, none of which are currently pending. He has not directed this Court to any current criminal proceeding to which his request might refer, and we are aware of none.

The duty of the trial court is to see that the cases before it proceed in an appropriate fashion. In general, however, it does not have a duty to rule on free-floating motions unrelated to currently pending actions. In fact, it has no jurisdiction to rule on a motion when it has no plenary jurisdiction coming from an associated case. See Rodriguez v. State, 28 S.W.3d 25 (Tex. App. Houston [1st Dist.] 2000, no pet.); Crowell v. State, 949 S.W.2d 37 (Tex. App. San Antonio 1997, no pet.).

We deny the petition.

Josh R. Morriss, III

Chief Justice

Date Submitted: April 12, 2004

Date Decided: April 13, 2004