In re Vincent Salazar--Appeal from 421st District Court of Caldwell County (majority)
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-11-00550-CV In re Vincent Salazar ORIGINAL PROCEEDING FROM CALDWELL COUNTY MEMORANDUM OPINION On September 9, 2010, relator Vincent Salazar filed a petition for writ of mandamus complaining of the trial court s alleged failure to rule on his motion for judgment nunc pro tunc, which claims that Salazar is entitled to jail-time credit of 180 days for time spent in a residential treatment center. According to Salazar, he filed his motion on or about August 18. Mandamus may issue to compel a trial court to rule on a motion for judgment nunc pro tunc addressing jail-time credit which has been pending before the court for a reasonable period of time. See Ex parte Ybarra, 149 S.W.3d 147, 149 (Tex. Crim. App. 2004); In re Sarkissian, 243 S.W.3d 860, 860-61 (Tex. App. Waco 2008, orig. proceeding). However, to obtain mandamus relief for the trial court s refusal to rule on such a motion, a relator must establish: (1) the motion was properly filed and has been pending for a reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to rule. See In re Hearn, 137 S.W.3d 681, 685 (Tex. App. San Antonio 2004, orig. proceeding). The relator has the burden of providing a record establishing that his motion has awaited disposition for an unreasonable time. In re Mendoza, 131 S.W.3d 167, 168 (Tex. App. San Antonio 2004, orig. proceeding). Moreover, merely filing a motion with a district or trial court clerk does not equate to a request that the trial court rule on the motion. See Hearn, 137 S.W.3d at 685. Salazar has failed to provide us with a copy of the motion, any correspondence to the district court requesting a ruling on the motion, or anything indicating that the district court has refused to rule on the motion. See Tex. R. App. P. 52.7(a) (relator must file with petition a certified or sworn copy of every document that is material to the relator s claim for relief and that was filed in any underlying proceeding ). As a result, there is no way for us to determine whether the motion was properly filed or, if it was, the date on which it was received by either the clerk s office or the judge, much less whether the motion has been pending for an unreasonable amount of time. The petition for writ of mandamus is denied without prejudice. __________________________________________ Bob Pemberton, Justice Before Chief Justice Jones, Justices Pemberton and Henson Filed: September 30, 2011 2
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