In Re: Ralph Hugh Howes--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00120-CV

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IN RE:

RALPH HUGH HOWES

Original Mandamus Proceeding

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

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Ralph Hugh Howes has filed a petition for writ of mandamus that directs the 188th Judicial District Court to rule on Howes' motion for a free copy of his trial record in cause number 29,458-A. Based on the record and pleadings before us, and without hearing oral argument, we dismiss the petition for writ of mandamus.

On or about September 15, 2004, Howes filed a motion with the trial court seeking a free copy of the reporter's and clerk's records in the case in which Howes was convicted of felony driving while intoxicated. By October 25, 2004, the trial court had not ruled on Howes' motion. Howes then filed a petition for writ of mandamus with this Court asking us to order the trial court to rule on his motion.

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 to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court 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).

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. Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex. 1962); O'Donniley v. Golden, 860 S.W.2d 267, 269 70 (Tex. App. Tyler 1993, orig. proceeding).

In the case now before us, Howes asks us to order the trial court to rule on his motion for a free record. The trial court has informed this Court that Howes' motion has now been ruled on. Based on this information, we conclude Howes' mandamus objective has been achieved. We dismiss his petition as moot.

Josh R. Morriss, III

Chief Justice

Date Submitted: November 4, 2004

Date Decided: November 5, 2004